
    The People of the State of New York, Respondent, v. John Donnelly, Appellant.
    Second Department,
    June 16, 1916.
    Crime — indictment charging unlawful possession of cocaine — proof that defendant possessed heroin — indictment dismissed.
    A defendant cannot be convicted of a violation of section 1746 of the Penal Law forbidding the sale of cocaine or its products, where the proof shows that heroin was found in his possession, and an indictment laid under said section 1746 should be dismissed.
    Appeal by the defendant, John Donnelly, from a judgment of the Court of Special Sessions of the City of New York, borough of Queens, rendered against him on the 28th day of December, 1915, convicting him of the crime of unlawfully possessing heroin.
    
      jBenjamin T. Hock [Louis Bergmann with him on the brief], for the appellant.
    
      Denis O’Leary [James F. Barry with him on the brief], for the respondent.
   Thomas, J.:

The appellant was convicted upon an information charging that he was unlawfully possessed of a quantity of heroin. A police officer saw the defendant walking on Rockaway road, and approaching, asked him “where he was going,” and, as testified, “he put his hand in his pocket and dropped a small package in the street.” A chemist opened the package and “found a small package there of white powder, * * * analyzed the white powder and found it contained heroin hydrochloride.” The brief for the respondent refers the case to section 1746 of the Penal Law (as added by Laws of 1913, chap. 470), which regulates the sale of “Alkaloid cocaine or its salts, or alpha or beta eucaine or their salts, or any admixture, compound, solution or product of which cocaine or eucaine or their salts may be an ingredient.” The evidence does not indicate that heroin or heroin hydrochloride is an element of any of the substances enumerated. Hence, the section, so far as appears, is not applicable. So the judgment of conviction of the Court of Special Sessions should be reversed, and as the information is laid under that section, it should be dismissed.

Jenks, P. J., Carr, Mills and Rich, JJ., concurred.

Judgment of conviction of the Court of Special Sessions reversed and information dismissed.  