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PEOPLE STATE NEW YORK v. WILLIAM LAWRENCE SHAFER (06/27/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 1968.NY.42368 <http://www.versuslaw.com>; 291 N.Y.S.2d 221; 30 A.D.2d 213 June 27, 1968 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.WILLIAM LAWRENCE SHAFER, APPELLANT. (ACTION NO. 1.); THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V. WILLIAM STEPHEN MARINACCIO, APPELLANT. (ACTION NO. 2.); THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V. BENEDICT THOMAS PETERS, JR., APPELLANT. (ACTION NO. 3.) Appeal, in the first above-entitled action, from a judgment of the Oswego County Court (Don H. Stacy, J.), rendered November 13, 1967 upon a plea of guilty convicting defendant of purchasing preparations excepted from prescription or order. Robert S. Amdursky for appellants. John R. Murray, District Attorney, for respondent. Witmer, J. Williams, P. J., Bastow, Goldman and Henry, JJ., concur. Author: Witmer


Appeal, in the first above-entitled action, from a judgment of the Oswego County Court (Don H. Stacy, J.), rendered November 13, 1967 upon a plea of guilty convicting defendant of purchasing preparations excepted from prescription or order.

Witmer, J. Williams, P. J., Bastow, Goldman and Henry, JJ., concur.

Author: Witmer

 The three defendants in these cases were convicted on their respective pleas of guilty to similar indictments against them charging in part that they severally violated paragraph (d) of subdivision 2 of section 3324 of the Public Health Law of New York; and they have appealed from the convictions upon the grounds that the indictments were insufficient in law and that the sentences were excessive.

Section 3305 of the Public Health Law provides:

"Narcotic control; acts prohibited; in general. It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this article."

The pertinent parts of section 3324 of the Public Health Law under which defendants were indicted provide:

"Preparations excepted from prescription or order. 1. The following preparations may be sold at retail by pharmacists * * * without a physician's prescription on written order, in quantities of not more than four fluid ounces to one person at any one time: * * *

"2. The exception authorized by this section shall be subject to the following conditions: * * *

"(d) it shall be unlawful for any person not possessing a special tax registration to purchase more than four ounces of any such preparation at any one time, or for any person to purchase any quantity of such preparation for purposes other than as a medicine, or for any person to give a false name or address when purchasing such preparation."

The first count of each indictment against the three defendants herein charges that the particular defendant, from a specified date and continuing until a designated date, in the County of Oswego did commit the crime of purchasing preparations excepted from prescription or order in violation of paragraph (d) of subdivision 2 of section 3324 of the Public Health Law of the State of New York "in that he did wrongfully, unlawfully, wilfully, intentionally, and knowingly purchase quantities of medicinal preparations containing one grain of codeine per one fluid ounce, while not possessing a special tax registration to purchase more than four ounces of any such preparation at any one time, in that he did purchase more than one four-ounce bottle of Robitussin A-C, each bottle containing four grains of codeine, a narcotic, and did purchase said bottles on the same days in violation of the above section of law." (Emphasis added.)

Defendant Shafer demurred to the indictment, but his demurrer was overruled. The record does not show whether an order was entered on such ruling; and the appeal is only from the judgment of conviction. Following that ruling, defendant Shafer demanded a bill of particulars, and the People supplied such bill. Therein the People alleged that between January 10, 1966 and March 27, 1967 said defendant made 141 purchases of four fluid ounce bottles of Robitussin A-C; but from the dates of purchase and the names of the vendors given, it appears that on only 10 days were two such purchases made, and on only one of those days (March 25, 1967) were the two purchases made in the same city, and even there the purchases were made from different druggists. The People do not contend that the particulars in support of indictments against the defendants Marinaccio and Peters, Jr. were materially different from those in the Shafer case.

Defendants point to the fact that whereas the statute forbids purchase of more than four ounces of such preparation "at any one time", the indictments charge the defendants with making more than one such purchase "on the same days"; and the question is whether such indictments charge a violation of the statute, so as to support the judgments of conviction.

The fact that the defendants pleaded guilty to the respective indictments will not cure the indictments, if bad, for the plea does not constitute a waiver of an objection to the validity of the indictment. That is true even as to defendants Marinaccio and Peters, Jr., who did not demur to the indictments against them; and if it is found that the indictments did not charge defendants with a crime, the convictions must be vacated and the indictments dismissed (People v. Scott, 3 N.Y.2d 148, 152; People v. Adams, 28 A.D.2d 708).

The first counts of the indictments are clearly not in the language of the statute; and we must determine whether the words "on the same days" have substantially the same meaning as the statutory words "at any one time". The People concede that purchases made by a person on different days are not made "at any one time". It would seem equally clear that two purchases made by a person in different communities on a given day are not made "at any one time", as those words are normally understood; and by a parity of reasoning two purchases by a person on one day in two different stores in one community are not made "at any one time". Such purchases might be made on one shopping trip, but that is extending the normal meaning of "any one time". Such purchases from two ...


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