Opinion
Argued January 21, 1970
Decided April 9, 1970
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JULIUS HELFAND, J.
Eugene Pelcyger and David T. Berman for appellant.
Eugene Gold, District Attorney ( Carl S. Wolfson of counsel), for respondent.
Defendant, the mother of three children and never before convicted of a crime, has been sentenced to three to five years in prison for the possession of slightly over one-quarter ounce of heroin. It was not charged to her that possession was with intent to sell, or that she made any sale. The severe sentence (the maximum possible was 3 to 10 years, former Penal Law, § 1751, subd. 3) seems to have been due to the refusal of defendant to aid in the prosecution of another person.
In the course of police testimony, the Judge developed from the witness that the form in which the drug was possessed by defendant in glassine envelopes was "for street sale". In his charge to the jury the Judge, reviewing this testimony, stated the police witness had testified "that each single glassine envelope is the type used to package heroin for sale to narcotic purchasers on the street".
This judicial emphasis on street sales was prejudicial to the defendant where mere possession without intent to sell was the sole ground of prosecution. The law question was sufficiently preserved for review here by exception to the charge. Other errors on the trial referred to in the dissent at the Appellate Division, although within the jurisdiction of that court as an exercise of discretion in the interest of justice, have not been sufficiently preserved in the narrower scope of review in this court.
The judgment should be reversed and a new trial ordered.
Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur.
Judgment reversed, etc.