SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 30, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JOHN HARRY HAZZARD, APPELLANT
Judgment of the Supreme Court, Queens County, rendered May 12, 1967, convicting defendant of various crimes, upon a jury verdict, affirmed.
Christ, Acting P. J., Benjamin, Munder, Martuscello and Kleinfeld, JJ., concur.
In our opinion, the proof as to the first count of the indictment (felonious sale of narcotics), albeit circumstantial, was clearly sufficient to sustain the conviction (People v. Taddio, 292 N. Y. 488). Furthermore, although the absence of any proof that appellant possessed one or more ounces of a narcotic drug rendered the statutory presumption of intent to sell by reason of possession of such a quantity unavailable (see former Penal Law, § 1751, subd. 2), there was other evidence sufficient to establish beyond a reasonable doubt the existence of the intent charged in the second count of the indictment (cf. People v. Silverman, 23 A.D.2d 947). Such intent was established by the testimony of one of the police officers who had witnessed an actual sale of narcotics by appellant immediately prior to his arrest and by the proof that nine separate packages, subsequently found to contain heroin, were found on appellant's person at the time of his arrest.
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