People State New York v. Andrew Vaughn

[35 A.D.2d 889 Page 889] The prosecution produced three members of the State Police to prove its case. One of the officers testified that on July
7, 1969 at about 8:45 p.m. on the sidewalk in front of the International Grill on Madison Avenue in the City of Albany, he
saw the defendant receive $10 from one Paul and give him in return a small packet; and that Paul immediately turned the packet
over to him. Another witness testified that he received the packet from the first witness and turned it over to the officer
in charge of the State Police Laboratory, who testified to analyzing its contents and found it to be cocaine. The defendant
contends that the verdict is against the weight of evidence; that there is no evidence that the defendant sold a narcotic
drug; and finally, that he was deprived of his right to confront Paul. We find no merit in any of these contentions. There
is sufficient evidence for a jury to conclude that the defendant received $10 from Paul and handed him a packet. There is
also ample evidence that the packet contained cocaine. The court could properly take judicial notice that cocaine is a narcotic.
(Padilla v. United States, 278 F. 2d 188; Hughes v. United States, 253 F. 543.) On the final point raised, defendant should
have known from the District Attorney's opening it was doubtful that he would call Paul as a witness. There was no duty on
the prosecution to call Paul. The prosecution had the obligation to prove its case beyond a reasonable doubt, and it could
select the witnesses it considered necessary to accomplish this. The defendant, therefore, should have subpoenaed Paul after
the prosecution's opening statement. By supplemental brief, the defendant raises one other issue. He contends that certain
handwritten notes intended for his attorney in connection with his defense were taken from him by a member of the Albany Sheriff's
office. He concedes they were later returned to him by his attorney. The material in question was retained for about an hour
and a half. It was not seen [35 A.D.2d 889 Page 890]