People v. Whitehurst

Appellate Division of the Supreme Court of New York

People v. Whitehurst

287 A.D.2d 320, 731 N.Y.S.2d 157, 2001 N.Y. App. Div. LEXIS 9634

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

DecidedOctober 16, 2001

StatusPublished

This text of 287 A.D.2d 320 (People v. Whitehurst) 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. Whitehurst, 287 A.D.2d 320, 731 N.Y.S.2d 157, 2001 N.Y. App. Div. LEXIS 9634 (N.Y. Ct. App. 2001).

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Opinion

—Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered June 12, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to concurrent terms of lx!z to 15 years, and judgment, same court and Justice, rendered September 25, 1998, convicting defendant, upon her plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to a concurrent term of 4V2 to 9 years, unanimously affirmed.

The court properly refused to give a missing witness charge regarding a “ghost” undercover officer since defendant failed to make a prima facie showing that the officer in question was in a position to observe the drug transaction (People v Kitching, 78 NY2d 532; People v Vasquez, 272 AD2d 226, lv denied 95 NY2d 872). The purchasing undercover officer clearly testified that he did not see the ghost until the transaction was over, and that the ghost was a block away. Even if the ghost was in a position to see the undercover officer at some point during or immediately after the transaction, it does not follow that the ghost was in a position to see the exchange of drugs for money.

We perceive no basis for reduction of sentence. Concur— Tom, J. P., Mazzarelli, Wallach, Buckley and Friedman, JJ.

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—Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered June 12, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to concurrent terms of lx!z to 15 years, and judgment, same court and Justice, rendered September 25, 1998, convicting defendant, upon her plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to a concurrent term of 4V2 to 9 years, unanimously affirmed.

The court properly refused to give a missing witness charge regarding a “ghost” undercover officer since defendant failed to make a prima facie showing that the officer in question was in a position to observe the drug transaction (People v Kitching, 78 NY2d 532; People v Vasquez, 272 AD2d 226, lv denied 95 NY2d 872). The purchasing undercover officer clearly testified that he did not see the ghost until the transaction was over, and that the ghost was a block away. Even if the ghost was in a position to see the undercover officer at some point during or immediately after the transaction, it does not follow that the ghost was in a position to see the exchange of drugs for money.

We perceive no basis for reduction of sentence. Concur— Tom, J. P., Mazzarelli, Wallach, Buckley and Friedman, JJ.

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Bluebook (online)

287 A.D.2d 320, 731 N.Y.S.2d 157, 2001 N.Y. App. Div. LEXIS 9634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-whitehurst-nyappdiv-2001.

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