People v. Bray

Appellate Division of the Supreme Court of New York

People v. Bray

21 A.D.2d 696, 251 N.Y.S.2d 930, 1964 N.Y. App. Div. LEXIS 3717

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 25, 1964

StatusPublished

This text of 21 A.D.2d 696 (People v. Bray) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Bray, 21 A.D.2d 696, 251 N.Y.S.2d 930, 1964 N.Y. App. Div. LEXIS 3717 (N.Y. Ct. App. 1964).

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Opinion

Appeal by defendant from a judgment of the County Court, Suffolk County, rendered April 26, 1963 after a jury trial, convicting him of selling narcotics (Penal Law, § 1751, subd. 1), and of possessing narcotics (Penal Law, § 1751-a); and imposing sentence. Judgment affirmed (see People v. Wright, 20 A D 2d 652). Beldoek, P. J., Brennan and Hopkins, JJ., concur; Kleinfeld and Christ, JJ., dissent and vote to reverse the judgment insofar as it relates to the conviction and sentence for selling narcotics; to dismiss the count of the indictment which charges defendant with selling narcotics; to vacate the sentence upon the conviction for possession of narcotics; to affirm the judgment insofar as it convicts defendant of possession of narcotics; and to remand defendant to the County Court, Suffolk County, for appropriate resentencing upon the conviction for narcotics possession, with the following memorandum: In our opinion, the proof established that defendant was acting merely as an agent for the purchaser; hence, he cannot be convicted of selling narcotics (People v. Lindsey, 16 A D 2d 805, affd. 12 N Y 2d 958; People v. Branch, 13 A D 2d 714; People v. Buster, 286 App. Div. 1141; United States v. Moses, 220 F. 2d 166; United States v. Sawyer, 210 F. 2d 169). The proof did establish, however, the defendant’s guilt of the misdemeanor of unlawful possession of narcotics.

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Appeal by defendant from a judgment of the County Court, Suffolk County, rendered April 26, 1963 after a jury trial, convicting him of selling narcotics (Penal Law, § 1751, subd. 1), and of possessing narcotics (Penal Law, § 1751-a); and imposing sentence. Judgment affirmed (see People v. Wright, 20 A D 2d 652). Beldoek, P. J., Brennan and Hopkins, JJ., concur; Kleinfeld and Christ, JJ., dissent and vote to reverse the judgment insofar as it relates to the conviction and sentence for selling narcotics; to dismiss the count of the indictment which charges defendant with selling narcotics; to vacate the sentence upon the conviction for possession of narcotics; to affirm the judgment insofar as it convicts defendant of possession of narcotics; and to remand defendant to the County Court, Suffolk County, for appropriate resentencing upon the conviction for narcotics possession, with the following memorandum: In our opinion, the proof established that defendant was acting merely as an agent for the purchaser; hence, he cannot be convicted of selling narcotics (People v. Lindsey, 16 A D 2d 805, affd. 12 N Y 2d 958; People v. Branch, 13 A D 2d 714; People v. Buster, 286 App. Div. 1141; United States v. Moses, 220 F. 2d 166; United States v. Sawyer, 210 F. 2d 169). The proof did establish, however, the defendant’s guilt of the misdemeanor of unlawful possession of narcotics.

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Bluebook (online)

21 A.D.2d 696, 251 N.Y.S.2d 930, 1964 N.Y. App. Div. LEXIS 3717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bray-nyappdiv-1964.

Opinion

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