People v. Wright

• Citation: 20 A.D.2d 652,246 N.Y.S.2d 250
• Parties: The PEOPLE of the State of New York, Respondent, v. Nathaniel WRIGHT, Appellant.
• Decision Date: 06 January 1964
• Court: New York Supreme Court — Appellate Division

Page 250

246 N.Y.S.2d 250

20 A.D.2d 652

The PEOPLE of the State of New York, Respondent, v. Nathaniel WRIGHT, Appellant.

Supreme Court, Appellate Division, Second Department.

Jan. 6, 1964.

Irving A. Green, Newburgh, for appellant.

Abraham Isseks, Dist. Atty., Middletown, for respondent; Angelo J. Ingrassia, Middletown, of counsel.

Before BELDOCK, P. J., and CHRIST, BRENNAN, HILL and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Orange County, rendered January 9, 1963 after a jury trial, convincting him on four counts of: (1) felonious possession of a narcotic drug with intent to sell on May 16, 1962 (Penal Law, § 1751, subd. 2); and (2) felonious sale of a narcotic drug on the same date (Penal Law, § 1751, subd. 1), and sentencing him as a second felony offender to serve a term of 10 to 20 years.

Judgment affirmed.

In our opinion, the proof presented a clear-cut issue of fact as to whether the defendant was the seller of the drugs or merely the buyer's accomplice or agent in purchasing the drugs for him. The case was in effect submitted to the jury, without exception, on that theory.

On this record we believe the jury was warranted in finding that the proof established beyond a reasonable doubt: (1) that the defendant was not the buyer's agent or accomplice; (2) that the defendant was the one who actually sold the drugs to the buyer, irrespective of whether the defendant acted as the agent for an undisclosed principal or as an independent contractor; (3) that in his capacity as seller the defendant actually received $25 for the drugs; and (4) that the defendant did make some profit on the transaction, either in cash or by obtaining an extra packet of the drugs for himself. In our opinion, these findings are fair inferences from all the proof adduced. In any event, what disposition the defendant may have made of the $25, or whether defendant paid the original supplier or how much defendant paid him, or whether defendant made any profit or how much profit, is not controlling. The proof amply supports the jury's finding that defendant himself was the seller and that he received either all or some portion of the proceeds of the sale.

We find the facts here to be materially different from the facts in People v. Lindsey, 16 A.D.2d 805, 228 N.Y.S.2d 427, affd. 12 N.Y.2d 958, 238 N.Y.S.2d 956, 189 N.E.2d 492--a case upon which the minority relies. There the proof showed: (a) that the defendants in fact acted as the accomplices or agents of the buyer (a police officer) in purchasing the drug; (b) that the real supplier, one Isadore Littman, openly made the sale himself directly to the buyer; and (c) that Littman was originally indicted and named as a codefendant but he pleaded guilty to unlawful possession of the narcotic drug and thus was not tried together with the other defendants.

BELDOCK, P. J., and BRENNAN and HOPKINS, JJ., concur.

CHRIST and HILL, JJ., dissent and vote to reverse the judgment and to dismiss the indictment with the following memorandum by HILL, J., in which CHRIST, J., concurs:

Defendant's conviction rests on a single sale of narcotic drugs to a paid investigator of the District Attorney's office, an...