Opinion
April 9, 1956
Appeal from a judgment of the County Court, Westchester County, convicting appellant of feloniously bartering, exchanging or selling a narcotic drug. Judgment reversed on the law and the facts and a new trial ordered. There was received in evidence a packet of heroin, allegedly purchased from appellant on the evening of January 23, 1954, by a special employee of the Federal Bureau of Narcotics. There was evidence that the same Federal employee purchased a similar packet from another person on the same evening, and that similar identification marks were placed on both packets. The Federal employee testified that he could not distinguish between the two packets. The evidence was insufficient to warrant the finding implicit in the jury's verdict that People's Exhibit 1-C was the packet purchased from appellant.
In my opinion, the identification of the packet of heroin purchased from appellant is clear and convincing. Although that packet appeared the same as the packet which the special Federal employee bought from another person the same evening, the evidence is that the identification marks on each packet were different in that the packet purchased from appellant and introduced into evidence had on it the initials of the special employee who purchased it. There is further evidence that the packet purchased from appellant was the only packet the special employee had on his person at the time he turned it over to another agent, who testified that that was the packet then brought to him by the special employee.