People v. Vaughn
| Decision Date | 30 November 1970 |
| Citation | 315 N.Y.S.2d 771,35 A.D.2d 889 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Andrew VAUGHN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Arnold W. Proskin, Albany County Dist. Atty., Albany (James F. Downs, Albany, of counsel), for respondent.
Robert G. Leyden, Albany, for appellant.
Before HERLIHY, P.J., and REYNOLDS, STALEY, COOKE and SWEENEY, JJ.
Appeal from a judgment of the County Court of Albany County, rendered December 3, 1969, convicting defendant of the crime of criminally selling a dangerous drug in the second degree.
The prosecution produced three members of the State Police to prove its case. One of the officers testified that on July 7, 1969 at about 8:45 P.M. on the sidewalk in front of the International Grill on Madison Avenue in the City of Albany, he saw the defendant receive $10 from one Paul and give him in return a small packet; and that Paul immediately turned the packet over to him. Another witness testified that he received the packet from the first witness and turned it over to the officer in charge of the State Police Laboratory, who testified to analyzing its contents and found it to be cocaine. The defendant contends that the verdict is against the weight of evidence; that there is no evidence that the defendant sold a narcotic drug; and finally, that he was deprived of his right to confront Paul. We find no merit in any of these contentions. There is sufficient evidence for a jury to conclude that the defendant received $10 from Paul and handed him a packet. There is also ample evidence that the packet contained cocaine. The court could properly take judicial notice that cocaine is a narcotic. (Padilla v. United States, 5 Cir., 278 F.2d 188; Hughes v. United States, 8 Cir., 253 F. 543.) On the final point raised, defendant should have known from the District Attorney's opening it was doubtful that he would call Paul as a witness. There was no duty on the prosecution to call Paul. The prosecution had the obligation to prove its case beyond a reasonable doubt, and it could select the witnesses it considered necessary to accomplish this. The defendant, therefore, should have subpoenaed Paul after the prosecution's opening statement. By supplemental brief, the defendant raises one other issue. He contends that certain handwritten notes intended for his attorney in connection with his defense were taken from him by a member of the Albany Sheriff's...
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