80 A.D.2d 804 | N.Y. App. Div. | 1981
Judgment, Supreme Court, New York County, rendered November 9, 1979 convicting defendant, upon resentence, after a jury trial, of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39) and criminally possessing a hypodermic instrument (Penal Law, § 220.45), and sentencing him thereon to a prison term from one to three years on the criminal sale count, and an unconditional discharge on the hypodermic instrument count, is unanimously affirmed. On May 6, 1976 the jury brought in a verdict of guilty. By motion dated June 7, 1976, defendant moved pursuant to CPL 330.30 (subd 3) to set aside the verdict on the sale count and for a new trial thereon on an affirmation by defense counsel that a woman named Myrna Rodriguez had told him that she had witnessed the transaction and that defendant was not the seller; that Ms. Rodriguez had been unwilling to get involved until after the jury verdict when she finally told defendant’s wife and “counselor” that she would be willing to talk to defendant’s lawyer and to come to court to tell the truth. On July 29, 1976 the Trial Judge granted the motion to set aside the verdict and for a new trial. Thereafter there were various adjournments of the proposed new trial. Ultimately defendant’s attorney informed the District Attorney that Ms. Rodriguez would not testify unless she were granted immunity from prosecution as her version now was that she was criminally involved in the sale. The District Attorney refused to consent to such a