From Casetext: Smarter Legal Research

People v. Wingate

Appellate Division of the Supreme Court of New York, Second Department
Jul 8, 1991
175 A.D.2d 191 (N.Y. App. Div. 1991)

Summary

In Wingate, the parties entered into a stipulation that a certain substance analyzed by a police chemist was cocaine but there was no other evidence establishing that the substance analyzed by the chemist was the same substance the defendant had allegedly sold to an undercover officer.

Summary of this case from People v. Prescott

Opinion

July 8, 1991

Appeal from the Supreme Court, Queens County (Golia, J.).


Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

At the trial, the parties stipulated that if the police chemist were to testify, he would indicate that his analysis showed that a substance which was inside an envelope was cocaine. However, there was no stipulation that the envelope produced at the trial and identified by the undercover police officer was the same envelope, the contents of which were analyzed by the police chemist. The People failed, by other evidence, to demonstrate that the substance analyzed by the chemist was the same substance that was allegedly sold by the defendant to the undercover officer. Since there was no evidence that the defendant sold a controlled substance, the evidence against the defendant was legally insufficient to establish an essential element of criminal sale of a controlled substance in the third degree (see, Penal Law § 220.39). Although the issue of law was not preserved for appellate review (see, People v Udzinski, 146 A.D.2d 245, 250), we reach it in the exercise of our interest of justice jurisdiction.

In light of this conclusion, it is unnecessary to consider the defendant's other contentions, including those raised in his supplemental pro se brief. Thompson, J.P., Eiber, Balletta and Ritter, JJ., concur.


Summaries of

People v. Wingate

Appellate Division of the Supreme Court of New York, Second Department
Jul 8, 1991
175 A.D.2d 191 (N.Y. App. Div. 1991)

In Wingate, the parties entered into a stipulation that a certain substance analyzed by a police chemist was cocaine but there was no other evidence establishing that the substance analyzed by the chemist was the same substance the defendant had allegedly sold to an undercover officer.

Summary of this case from People v. Prescott
Case details for

People v. Wingate

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BLAKE WINGATE…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 8, 1991

Citations

175 A.D.2d 191 (N.Y. App. Div. 1991)
573 N.Y.S.2d 903

Citing Cases

People v. Prescott

Had the defendant made a timely objection, the prosecution could have easily cured the deficiency by securing…

People v. Alameen

Here, however, defendant was charged, tried and convicted not for an attempt but, rather, for the criminal…