People v. Williams
| Decision Date | 29 June 1970 |
| Citation | 34 A.D.2d 1046,312 N.Y.S.2d 834 |
| Parties | The PEOPLE of the State of New York, Respondent, v. James WILLIAMS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John F. O'Mara, Dist. Atty., Chemung County, Elmira, for respondent.
Charles A. Bradley, III, Elmira, for appellant.
Before HERLIHY, P.J., and REYNOLDS, STALEY, GREENBLOTT and SWEENEY, JJ.
Appeals from a judgment of the County Court of Chemung County, rendered February 19, 1969, convicting appellant of the crime of criminally selling a dangerous drug in the second degree, and from an order of that court entered February 27, 1970 denying defendant's application for a new trial.
Appellant raises, Inter alia, the following contentions: (1) the trial court abused its discretion in permitting the witness Kababjian to testify as an expert in the field of chemical analysis; (2) the trial court committed reversible error in refusing to charge that the jury had a right to assume that one Rufus White was not called as a witness because if he testified, he 'would have given a truthful version of what occurred or a version contrary to the stories told by the prosecution witnesses'; and (3) that his application for a new trial should have been granted.
The trial court properly received the testimony of the witness Kababjian. He was allowed to identify as heroin the contents of two envelopes purchased from appellant. A college graduate with a major in chemistry, he had received on-the-job laboratory training from senior chemists over a period of ten years. During this period, he performed approximately 1,000 tests for the presence of heroin and it is evident that his education and experience properly qualified him as an expert witness (Meiselman v. Crown Heights Hospital, 285 N.Y. 389, 34 N.E.2d 367).
We reject appellant's contention that the failure of respondent to call Rufus White, an alleged informer, as a witness warrants a charge that the informer's testimony would have been contrary to that of other prosecution witnesses. Failure to call a witness within a party's control merely permits the trier of the fact to give greater weight to uncontradicted evidence already in the case. It does not warrant speculation 'as to the testimony which might have been adduced by one not called' (Robinson v. City of New York, 5 A.D.2d 197, 199, 170 N.Y.S.2d 734, 737). Moreover, since representatives of the State Police had unsuccessfully attempted to contact White, a man with a criminal record, whose whereabouts at the time of trial were unknown, he was obviously not a witness within respondent's control.
The order denying a new trial on the grounds of newly discovered...
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