Opinion
December 21, 1970
Appeal from a judgment of the County Court of Sullivan County, rendered August 11, 1969, upon a verdict convicting defendant of criminally selling a dangerous drug in the second degree, in violation of section 220.35 Penal of the Penal Law. At the trial an investigator of the New York State Bureau of Criminal Investigation testified that, while working as an undercover agent, he was introduced to defendant on November 19, 1968, and that on November 20, 1968 defendant sold him two decks of heroin at Lyon's Bar, Monticello, New York. Prior to the trial the District Attorney and defendant's attorney agreed to recommend treatment as a narcotic addict under section 208 of the Mental Hygiene Law. Defendant at that time refused such treatment indicating that he preferred to proceed to trial. After the jury's verdict and prior to sentencing, defendant and his counsel sought to have the defendant sentenced to the care and custody of the Narcotic Addiction Control Commission pursuant to section 208 of the Mental Hygiene Law. The court denied this request, and sentenced defendant to be committed to the custody of the State Department of Correction for an indeterminate term, the maximum of which to be nine years. At the sentencing proceedings defendant sought to review the probation report for the purpose of having "an opportunity to refute anything that might not be true and claims that were not actual facts that would influence your Honor's decision." The court denied this application also. On this appeal appellant first contends that at the trial the court limited the testimony of the defense witness John Hess, a resident of the Woodbourne Rehabilitation Center, as to the drug addiction of the undercover agent, and that such limitation was improper in that the purpose of such testimony went to the credibility of the undercover agent's testimony. The testimony of the witness Hess was to the effect that he met the undercover agent in January, 1969, and that he gave him money to purchase drugs. The defense counsel contends that he was entitled to prove that the agent was a narcotic user by showing purchases of narcotics by him. The purchase of narcotics in and of itself does not establish use thereof. Further, the court did not prohibit the defense counsel from asking Hess whether he had ever seen the agent using narcotics. Defense counsel never asked such a question and failed to pursue the line of questioning. Defendant next contends that prejudicial error was committed by permitting into evidence an admission by defendant without complying with section 813-f of the Code of Criminal Procedure. The alleged admission consisted of a conversation on November 19, 1968 between defendant and a private individual and overheard by the undercover agent, to wit: "I think he's okay, but we'll have to continue going through the transactions the way we have in the past." Thus, the conversation took place prior to the sale for which defendant was arrested, was made to a private person and not to a police agent. An admission made to a private person does not come within the purview of section 813-f. ( People v. Mirenda, 23 N.Y.2d 439.) Insofar as defendant asserts that the statement referred to admission of past crimes and, therefore, not admissible in evidence, it is clear that the statement would come within the exceptions to the rule in that it tends to establish intent and absence of mistake. ( People v. Molineux, 168 N.Y. 264, 293.) Defendant next contends that the refusal to permit defendant's attorney to review the probation report was unconstitutional and a violation of due process of law. Similar arguments were considered in People v. Peace ( 18 N.Y.2d 230), and the Court of Appeals determined that access of a defendant to a probation report is a matter for the discretion of the trial court. Nothing in this record is indicative of an abuse of discretion by the trial court in denying access to the report. Defendant's contention that the verdict is contrary to the weight of the evidence amounts merely to an argument that the jury should have believed his version of the facts rather than the testimony of the undercover agent. Credibility of the witnesses is an issue of fact to be determined by the jury, and we see no reason to disturb its findings in this regard. Defendant's contention that he should have been sentenced to the care and custody of the Narcotic Addiction Control Commission, pursuant to section 208 of the Mental Hygiene Law, is without merit. Under section 208 discretionary power is granted to the sentencing court when the sentence to be imposed is for a felony, to impose a sentence in accordance with the provisions of the Penal Law or to certify defendant to the care and custody of the commission. The court adequately explained its reasons for not certifying defendant to the care and custody of the Narcotic Addiction Control Commission, and, in our opinion, properly exercised its discretion in imposing sentence. We have considered the remaining contentions of defendant and find no merit therein. The judgment of conviction should, therefore, be affirmed. Judgment affirmed. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.