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PEOPLE STATE NEW YORK v. ROBERT RICCI AND JOHN DOE (03/11/69)

COUNTY COURT OF NEW YORK, ONEIDA COUNTY 1969.NY.40793 <http://www.versuslaw.com>; 298 N.Y.S.2d 637; 59 Misc. 2d 259 March 11, 1969 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.ROBERT RICCI AND JOHN DOE, ALSO KNOWN AS STEVE FAMIGLIETTI, DEFENDANTS Arthur A. Darrigrand, District Attorney (Edward A. Wolff, Jr., of counsel), for plaintiff. Joseph J. Shinder for Steve Famiglietti, defendant. John J. Walsh, J. Author: Walsh


John J. Walsh, J.

Author: Walsh

 The defendants have been indicted on three counts involving dangerous drugs. The indictment charges that on the 7th day of January, 1969, the defendants acting together and in concert and each being the accomplice of the other, sold lysergic acid diethylamide, an hallucinogenic drug (LSD), to G. P. Thomas (count 1) and to M. E. Hamlin (count 2) in the City of Utica and also criminally possessed the same drug (count 3).

The defendant seeks a bill of particulars, a list of witnesses, discovery and inspection, production of the statements of witnesses; to dismiss the indictment on the ground that statutes are unconstitutional; and to inspect the Grand Jury minutes and dismiss the indictment.

Constitutionality of the Statutes.

The defendant contends that sections 220.30 and 220.10 of the Penal Law are unconstitutional in that they are vague and indefinite and do not set forth an ascertainable standard of guilt, and more particularly that they fail to define "narcotic drug" and "dangerous drug."

The sections seem clear and definite in what is forbidden thereby.

Section 220.30 reads that "A person is guilty of criminally selling a dangerous drug in the third degree when he knowingly and unlawfully sells a dangerous drug."

Section 220.00 defines a "dangerous drug" as "any narcotic drug, depressant or stimulant drug, or hallucinogenic drug." (Subd. 4.) An hallucinogenic drug is defined as "any drug, article or substance declared to be 'hallucinogenic drugs' in section two hundred twenty-nine of the mental hygiene law." (Subd. 3.)

The indictment here charges a sale of lysergic acid diethylamide (LSD), an hallucinogenic drug. Section 229 of the Mental Hygiene Law includes lysergic acid diethylamide among the hallucinogenic drugs.

Section 220.30 and the analogous section 220.10 relating to possession are constitutional. Motion to dismiss the indictment denied.

Motion to Inspect Grand Jury Minutes.

The defendant seeks to inspect the Grand Jury minutes on the ground that (a) the sole testimony before the jury must have been that of the undercover agents and that their testimony is uncorroborated and (b) that there was entrapment in this case. As to (a) the defendant claims that Thomas and Hamlin "were acting in disguise at the time * * * being disguised as hippies" and having participated in the alleged transaction as accomplices, their testimony standing alone is insufficient and illegal as a matter of law.

Only the seller of a dangerous drug, not the buyer, is guilty of the crime of criminally selling a drug. The buyer of a dangerous drug, moreover is not an accomplice of the seller and the buyer's testimony need not be corroborated, regardless of whether or not the buyer is an undercover agent of the police.

This court has already held in a companion case that entrapment is an affirmative defense to be raised at the trial and matters of defense are not grounds for inspecting Grand Jury minutes.

In the interests of justice, the court has personally examined the minutes and finds therein nothing which would be of the least benefit to defendant on the defense of entrapment. The court finds that there was sufficient legal evidence before the ...


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