People v. Garcia

50 A.D.2d 544, 375 N.Y.S.2d 344, 1975 N.Y. App. Div. LEXIS 12277

Opinions

— Judgment of conviction after jury trial, Supreme Court, New York County, rendered June 15, 1973, affirmed. This trial involved a pure issue of fact as to whether the identifiable containers in the defendant-appellant’s apartment, attributable to him, were shown by a chain of connective evidence to have been the same which, according to the police chemist, were found to contain heroin. Due to errors in description, such as, for instance, referring to the same container by different appellations, an unsuccessful attempt was made at trial to confuse the jury in following the particular containers through the chain of connective testimony. This was compounded by the failure of the officers to agree completely upon descriptions of what was found. But the evidence provided a basis upon which the jury could well have found that all three containers came from defendant’s apartment and, since one was shown to contain the drug, there was ample basis to convict defendant of its possession. The court’s charge, in all fairness, directed attention to the discrepancies, and it was not error to advise the jury to "keep its eye on the ball.” Other points raised are without merit. Concur — Markewich, J. P., Tilzer and Lane, JJ.; Murphy and Lupiano, JJ., who dissent in the following memorandum by Lupiano, J.: