Summary
approving toxicologist's procedure of choosing envelopes of heroin at random from a large batch to estimate total weight seized
Summary of this case from U.S. v. ShonubiOpinion
Argued October 17, 1975
Decided November 19, 1975
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, STEPHEN SMYK, J.
Lee S. Michaels for appellant.
Patrick D. Monserrate, District Attorney (Patrick H. Mathews of counsel), for respondent.
MEMORANDUM. Defendant was convicted of possession of a dangerous drug in the fourth degree (Penal Law, § 220.15, subd 2, par [b], cl [i]) for having in his possession 148 glassine envelopes packed in 10 batches which, according to the People's expert, consisted of one third of an ounce of a substance containing heroin. On this appeal the defendant claims that because the toxicologist's opinion was based on an analysis of 10 envelopes selected one from each of the 10 batches at random, the People failed to prove beyond a reasonable doubt that he possessed one eighth of an ounce or more of a substance containing heroin as is required to sustain a conviction for possession in the fourth degree.
At the trial the toxicologist testified that his opinion was based on the selection of 10 envelopes; that his analysis of their contents indicated that each of them contained heroin; that after weighing each he determined that the average weight was, 63 milligrams, and that after multiplying the average weight by the number of envelopes, he concluded that the defendant possessed one third of an ounce or more of a substance containing heroin. All of this was made quite clear to the jury, the expert's opinion was received without objection, and all 148 envelopes were themselves admitted into evidence and physically before the jury.
Under these circumstances we believe that it was for the jury to decide whether the expert had adequately analyzed and weighed the contents and whether his opinion was entitled to be credited. Thus we conclude that there is no merit to the defendant's argument that the People failed, as a matter of law, to prove his guilt beyond a reasonable doubt.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur; Judge COOKE taking no part.
Order affirmed in a memorandum.