As to increased damages, it was noted in Liggieri v. Pasternack ( 51 A.D.2d 731): "Plaintiffs have failed to establish that their injuries were greater than, or different from, those originally contemplated. In view of the late stage — the very eve of the trial as to damages — at which their motion was made, it was not error to deny them leave to increase the ad damnum clause (see Jochnowitz v. Sheehan, 42 A.D.2d 707; Collier v. United States Trucking Corp., 49 A.D.2d 655; London v. Moore, 32 A.D.2d 543." On the issue of prejudice, appellant Texaco notes in its reply brief that because of the protracted delay, it may very well end up as a self-insurer for any amount above the face of its policy ($1,000,000).
On February 14, 1974, the appellant was sentenced in Albany County Court to an indeterminate sentence of seven years to life following his conviction, after trial, of criminal sale of a controlled substance in the third degree. On July 24, 1975 we affirmed (People v Russell, 49 A.D.2d 655). In his brief herein, appellant's sole contention is that "the refusal of the Albany County District Attorney's Office to produce the informant, Daniel Jerome Powell, at appellant's trial denied the appellant his sixth amendment constitutional right to be confronted with the witnesses against him". Habeas corpus is not a proper remedy for attacking the judgment of conviction. Appellant should have brought a proceeding pursuant to CPL article 440 in the county where he was convicted (People ex rel. White v La Vallee, 51 A.D.2d 1093). Furthermore, habeas corpus is not an appropriate remedy to collaterally attack a judgment of conviction on constitutional grounds (People ex rel. Malinowski v Casscles, 53 A.D.2d 954; People ex rel. Stewart v La Vallee, 51 A.D.2d 1092).
idence, the prosecution must establish the chain of possession of such evidence and its unchanged nature from the time it was obtained until trial (People v Connelly, 35 N.Y.2d 171). Where, however, circumstances provide adequate assurances of identity and unchanged nature of the evidence and it would be impossible or an unreasonable requirement to produce each physical custodian as a witness, the rule is relaxed (People v Porter, 46 A.D.2d 307). In this case the testimony of Lt. Hudson who collected the evidence at the scene and later tagged it at the station house and of Trooper Knapik who received the items from Hudson, labeled and transported them to and from the State Police Laboratory, fails to reveal any patent gaps in the custody of the evidence from which tampering could be implied to justify exclusion (Durham v Melly, 14 A.D.2d 389). There is nothing in this record which might cast doubt upon the identity or integrity of the subject items (People v White, 50 A.D.2d 614, 615; People v Russell, 49 A.D.2d 655). While the defendant is correct that the trial court erred in permitting the prosecution to exhibit before the jury (Exhibit No. 22, marked for identification only and, presumably, on prosecutor's table during summation) pubic hair found on the victim which compared favorably to that of defendant, when such exhibit had not been received into evidence, such error was rendered harmless in light of the defendant's five separate confessions of killing Amy Huppuch. Further, the error must be considered harmless in that, on this record, there is not a significant probability that the jury would have acquitted the defendant had the hair not been shown to the jury (People v Crimmins, 36 N.Y.2d 230; People v Garrow, 51 A.D.2d 814). The defendant's next contention that he was inadequately informed of his Miranda rights is meritless. Lt. Hudson testified on two occasions that he informed the defendant (1) that he had a right to remain silent, (2) that anything he said could be used against him,
The People established a prima facie case that defendant was a seller of drugs rather than, as she asserts, merely an agent for the buyer, an undercover police officer (People v Urich, 37 A.D.2d 901). Thus, the resolution of this issue was a question for the jury and, on the instant record, we find no basis to disturb the determination (People v Fisher, 35 A.D.2d 886). Furthermore, we find that the chain of possession of the envelope containing the heroin allegedly provided by defendant was adequately established so as to provide a reasonable guarantee of identity and unchanged condition (People v Connelly, 35 N.Y.2d 171; People v White, 49 A.D.2d 614; People v Russell, 49 A.D.2d 655; People v Porter, 46 A.D.2d 307). Finally, the maximum life sentence was not unconstitutional (People v Broadie, 37 N.Y.2d 100). Judgment affirmed. Herlihy, P.J., Greenblott, Kane, Main and Reynolds, JJ., concur.
The investigating officer also accounted for its transportation to and from the chemist, as well as its production at trial, and specified its location during intervening periods. There is nothing in this record to suggest access to or tampering with this exhibit, or any other factors which might cast doubt upon its identity or integrity. Under these circumstances, the requisite tests for admissibility were satisfied (People v Connelly, 35 N.Y.2d 171; People v Russell, 49 A.D.2d 655; People v Porter, 46 A.D.2d 307), and this is particularly so when, as here, the defendant made no attack on the chain of possession or objected to the introduction of this exhibit on that ground. Finally, there is no merit to defendant's argument that the trial court erred in allowing the chemist to testify as an expert (People v Hood, 47 A.D.2d 971).
"Practical limitations" in establishing the transfer of an exhibit from hand to hand, must be observed; here there was "nothing to suggest access or tampering or that the evidence was not maintained in accordance with reasonable police procedures." (People v Connelly, 35 N.Y.2d 171, 175, 176; see, also, People v Russell, 49 A.D.2d 655; People v Porter, 46 A.D.2d 307, 311.) A finding of facts that would constitute first degree assault if committed by an adult is made against each respondent.