Opinion
November 21, 1973
Appeal from a judgment of the County Court of Sullivan County, rendered July 31, 1972 upon a verdict convicting defendant of two counts of criminally selling a dangerous drug in the third degree in violation of section 220.35 Penal of the Penal Law. Testimony was adduced at the trial that the defendant had sold heroin to a police officer at two different times on September 28, 1971. Among other things, the defendant contends that the bail provisions of CPL article 500 are unconstitutional and that the trial court erred in permitting an in-court identification of him since there was evidence that the person making the identification had seen him in two suggestive appearances some months after the crime had occurred. The constitutionality of CPL article 500 has been upheld by the Court of Appeals in the case of Bellamy v. Judges Justices in N.Y. City Crim. Ct. ( 32 N.Y.2d 886). The defendant does not contend that the trial court abused its discretion in arriving at the amount of bail and the record does not disclose any facts and circumstances which would support a finding of discrimination as to this defendant. The record discloses that the police officer who purchased the drugs from the defendant had ample opportunity to observe him in face-to-face confrontations at the time of the sales and that the in-court identification was not affected by the inadvertent observations of the defendant by that witness at times after his arrest. The remaining issues pressed by the defendant are without merit. Judgment affirmed. Herlihy, P.J., Staley, Jr., Cooke, Sweeney and Main, JJ., concur.