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PEOPLE v. CALDWELL

24 N.Y.2d 797 (1969)

The People of the State of New York, Respondent, v. Carter Caldwell, Appellant.

Court of Appeals of the State of New York.

Decided April 9, 1969.

Attorney(s) appearing for the Case

Stuart D. Root for appellant.

Frank S. Hogan, District Attorney (Sybil H. Landau and Michael R. Juviler of counsel), for respondent.

Concur: Chief Judge FULD and Judges BURKE, BERGAN, KEATING and BREITEL. Judges SCILEPPI and JASEN dissent and vote to affirm.

Judgment reversed and a new trial ordered in the following memorandum: Defense counsel sufficiently preserved for this court's review the point that defendant was entitled to an instruction to the jury that it could return a verdict against the defendant for possession of a narcotic drug if it did not believe that a sale had been proved beyond a reasonable doubt (People v. Malave, 21 N.Y.2d 26

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