Opinion
January 14, 1971
Appeal from a judgment of the County Court of Chemung County, rendered October 27, 1969, which adjudged defendant a youthful offender upon a decision of the court after a trial without a jury. Having been indicted for two counts of criminally selling a dangerous drug in the first degree, committed on March 12, 1969 and April 23, 1969, and having been investigated by the Probation Department, defendant was determined to be eligible for youthful offender treatment. Although advised of its availability, appellant did not request a jury trial and, after a trial before the County Judge, he was adjudged a youthful offender and sentenced to a five-year probation term, one of the conditions being that he accept placement in a youth facility and abide by its rules until released. The contention that the Judge erred in not disqualifying himself for the trial, since he had had access to the probation report and statements made by defendant to the probation officer in determining whether defendant was eligible for youthful offender treatment, is without merit. The Code of Criminal Procedure (§ 913-e et seq.) contains no suggestion that different Judges must act at the two stages, there is no indication of any statutory ground for disqualification (Judiciary Law, § 14) and it cannot be said as a matter of law that the Judge abused his discretion in denying the motion to disqualify since, inter alia, there was no showing of bias, prejudice or other basis of partiality ( People v. Horton, 18 N.Y.2d 355, 361-362; Matter of Mavroidi, 60 N.Y.S.2d 344, affd. 270 App. Div. 920; see 32 N.Y. Jur., Judges, §§ 40, 41). Indeed, in making the application, defendant's attorney stated that he did "not infer or imply or in any way accuse the Court of prejudice or prejudgment in the matter". In a nonjury criminal trial, the District Attorney is not required to open the case (Code Crim. Pro., § 388; People v. Rivara, 33 A.D.2d 567) and, in any event, the prosecutor's presentation, consisting of more than the simple reading of the indictment (cf. People v. Levine, 297 N.Y. 144, 147), was sufficient under the circumstances (cf. People v. Wade, 35 A.D.2d 401). The mere fact that the State Police Investigator may have withheld for 13 days execution of a warrant for defendant's arrest for the offense covered by the first count, to attempt a second purchase of marijuana from defendant, did not constitute the defense of entrapment (Penal Law, § 40.05) and the court had a right to find on the evidence that the officer's conduct did no more than afford defendant an opportunity to commit the second offense ( People v. Fisher, 35 A.D.2d 886). In view of the scholastic background and the extensive observation and actual experience of the State Police chemist in analyzing vegetable materials alleged to be marijuana, there is no reason to disturb the discretion of the trial court in allowing him to testify as an expert at the trial ( Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 398-399; Richardson, Evidence [9th ed.], § 388). The sentence was not excessive. Judgment affirmed. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.