People v. Passariella

Appellate Division of the Supreme Court of New York

People v. Passariella

174 A.D.2d 997, 572 N.Y.S.2d 158, 1991 N.Y. App. Div. LEXIS 8918

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

DecidedJune 7, 1991

StatusPublished

This text of 174 A.D.2d 997 (People v. Passariella) 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. Passariella, 174 A.D.2d 997, 572 N.Y.S.2d 158, 1991 N.Y. App. Div. LEXIS 8918 (N.Y. Ct. App. 1991).

Pincite

Opinion

—Judgment unanimously affirmed. Memorandum: Supreme Court properly rejected de[998]*998fendant’s request that the jury be given a missing witness charge on the basis of the People’s inability to produce an informant for trial, despite their diligent yet unsuccessful attempts to locate him (see, People v Gonzalez, 68 NY2d 424; People v Sturgis, 154 AD2d 906, lv denied 75 NY2d 776; People v Morris, 140 AD2d 551, lv denied 72 NY2d 922). In addition, the court’s instruction to the jury that the People’s pretrial destruction of cocaine could be considered with respect to the sufficiency of the evidence was an appropriate exercise of discretion. The destruction was inadvertent, the prejudice to defendant was minimal and defendant acceded to the instruction (see, People v Martinez, 71 NY2d 937; People v Perrin, 163 AD2d 809, lv denied 76 NY2d 989; see generally, People v Kelly, 62 NY2d 516).

Although the trial court erred in admitting testimony about an aborted subsequent attempt to purchase cocaine from defendant, the court’s curative instruction was sufficient to correct that error, and thus defendant was not deprived of a fair trial.

We have examined defendant’s other contentions and find them to be without merit. (Appeal from Judgment of Supreme Court, Erie County, Rossetti, J.—Criminal Sale Controlled Substance, 3rd Degree.) Present—Callahan, J. P., Denman, Balio, Lawton and Lowery, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Judgment unanimously affirmed. Memorandum: Supreme Court properly rejected de[998]*998fendant’s request that the jury be given a missing witness charge on the basis of the People’s inability to produce an informant for trial, despite their diligent yet unsuccessful attempts to locate him (see, People v Gonzalez, 68 NY2d 424; People v Sturgis, 154 AD2d 906, lv denied 75 NY2d 776; People v Morris, 140 AD2d 551, lv denied 72 NY2d 922). In addition, the court’s instruction to the jury that the People’s pretrial destruction of cocaine could be considered with respect to the sufficiency of the evidence was an appropriate exercise of discretion. The destruction was inadvertent, the prejudice to defendant was minimal and defendant acceded to the instruction (see, People v Martinez, 71 NY2d 937; People v Perrin, 163 AD2d 809, lv denied 76 NY2d 989; see generally, People v Kelly, 62 NY2d 516).

Although the trial court erred in admitting testimony about an aborted subsequent attempt to purchase cocaine from defendant, the court’s curative instruction was sufficient to correct that error, and thus defendant was not deprived of a fair trial.

We have examined defendant’s other contentions and find them to be without merit. (Appeal from Judgment of Supreme Court, Erie County, Rossetti, J.—Criminal Sale Controlled Substance, 3rd Degree.) Present—Callahan, J. P., Denman, Balio, Lawton and Lowery, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

174 A.D.2d 997, 572 N.Y.S.2d 158, 1991 N.Y. App. Div. LEXIS 8918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-passariella-nyappdiv-1991.

Opinion

Related

Cite This Page — Counsel Stack