Opinion
April 7, 1958
Appellant was convicted in the Court of Special Sessions of the City of New York, Borough of Queens, of (1) possessing a narcotic drug in violation of section 3305 Pub. Health of the Public Health Law and section 1751-a of the Penal Law, and (2) possessing instruments adapted to the use of narcotic drugs in violation of section 1747-d of the Penal Law, and was sentenced to serve 60 days. The appeal is from the judgment of conviction and from the sentence. Judgment reversed on the law and the facts and information dismissed. In our opinion the proof adduced fails to establish appellant's guilt beyond a reasonable doubt. ( People v. Perry, 2 N.Y.2d 785.) The proof of possession of the narcotics or the instruments was not shown to be conclusive. ( People v. Leavitt, 301 N.Y. 113; People v. Wolosky, 296 N.Y. 236; People v. Rosen, 294 N.Y. 761.) No separate appeal lies from the sentence, which has been reviewed on the appeal from the judgment of conviction. Nolan, P.J., Wenzel, Beldock, Ughetta and Hallinan, JJ., concur.