4

The People's Case at the Hearing and at the Trial

4

The Defense at the Hearing and at the Trial

5

Prosecution Rebuttal at the Trial

6

THE DECISION OF THE HEARING COURT

7

POINT ONE-The motion to suppress was properly denied by the hearing judge

7

POINT TWO-The defendant's guilt was established beyond a reasonable doubt

10

POINT THREE-Defendant Rosario was not deprived of

his right to counsel

13

CONCLUSION

15

Defendant Angel Rosario appeals from a judgment of the Supreme Court, Bronx County (Aurelio, J.), rendered February 24, 1966, convicting him after a jury trial of the crime of unlawfully giving a narcotic drug to another [Penal Law, §1751(1)] and sentencing him to a term of 5 'to 10 years in State Prison.

Defendant Luciano Lanclos appeals from a judgment of the Supreme Court, Bronx County (Aurelio, J.), rendered

в

B

convic

February 24, 1966, convicting him after a jury trial of the crime of unlawful possession of a narcotic drug [Penal Law §1751(2)] and sentencing him to a term of 5 to 7 years in State Prison.

Rosario is apparently serving his sentence. Lanclos, it appears, is at liberty on bail by virtue of the issuance of a Certificate of Reasonable Doubt in April, 1966.

Introduction

On the evening of April 2, 1965, Detective James Malone saw the defendant Angel Rosario give a brown shopping bag to the defendant Luciano Lanclos, which bag contained a substance of an aggregate weight of 9 pounds, 114 ounces with cannabis present in the mixture.

Angel Rosario was indicted in a three count indictment (No. 1029/65) by the Grand Jury of Bronx County, and charged, inter alia, with violating both Sections 1751(1) and (2) of the Penal Law. Luciano Lanclos was indicted in a separate, two count indictment (No. 1025/65) by the Grand Jury of Bronx County, and charged with two possessory crimes, including a violation of Section 1751 (2) of the Penal Law. The indictments were consolidated for the purpose of trial.

Prior to trial both defendants moved for a Fourth Amendment hearing to suppress the narcotics, and, at the conclusion of the hearing, Mr. Justice Markowitz denied the motion.

At the trial the People proved that Rosario gave the shopping bag to Lanclos who turned and started to walk away. As he was approached by the police officer, Lanclos dropped the bag and two packets, which contained a marijuana mixture, fell out.

Both defendants, Angel Rosario and Luciano Lanclos, testified that the arrest occurred as soon as they emerged from the automobile. Rosario admitted his possession but denied that he gave the marijuana to Lanclos. Lanclos dedied having known that the shopping bak contained marijuana.

On this appeal, defendant Rosario claims that the evidence was insufficient to sustain his conviction under Penal Law, $1751(1); that the Trial Court committed reversible error in failing to instruct the jury as to the elements of that crime; that he was denied a fair trial and adequate assistance of counsel because his attorney also represented the co-defendant whose interest conflicted with his own; that error was committed by the Hearing Court's failure to suppress the cannabis; and that he was denied due process because the Hearing Court made no specific findings of fact on the motion to suppress.

Defendant Lanclos contends that the People's evidence was insufficient to establish a prima facie case or to prove his guilt beyond a reasonable doubt; and that the evidence was obtained in violation of his constitutional rights and should have been suppressed.