Summary
dismissing indictment where defendant sold fake cocaine and "[i]t was equally plausible that defendant intended to defraud the undercover officer."
Summary of this case from Hewitt v. City of N.Y.Opinion
April 14, 1993
Appeal from the Erie County Court, Drury, J.
Present — Denman, P.J., Pine, Lawton, Doerr and Davis, JJ.
Judgment unanimously reversed on the law and indictment dismissed. Memorandum: Defendant was charged with criminal sale of a controlled substance in the first degree and conspiracy in the second degree, based on an attempted controlled buy of two or more ounces of cocaine by an undercover officer. At trial, the officer testified that, when he asked a codefendant whether he had "the stuff", the codefendant held up a bag that appeared to be a "white powder substance, cocaine, about two and a half to three ounces". Defendant, however, insisted that the undercover officer enter the house to complete the deal, and the officer instead stalled and called for back-up. No drugs were recovered when the police arrived, and the undercover officer testified that he felt that defendant was trying to "rip [him] off."
The People concede that the conviction of criminal sale of a controlled substance in the first degree must be reversed based on insufficient proof; that crime requires the sale of two or more ounces of a narcotic drug and, here, the "cocaine" was not weighed (cf., People v George, 67 N.Y.2d 817, 819). Their argument that the conviction should be reduced to criminal sale of a controlled substance in the third degree, for which there is no minimum weight requirement, lacks merit because the proof was insufficient to establish that the substance was cocaine (see, People v Fleary, 85 A.D.2d 742; cf., People v Christopher, 161 A.D.2d 896, lv denied 76 N.Y.2d 786; People v Jewsbury, 115 A.D.2d 341). In addition, the conspiracy conviction must be reversed because the People failed to prove that defendant intended to sell cocaine, and thus failed to prove the specific intent for the felony towards which, according to the indictment, the conspiracy was directed (see, People v Ozarowski, 38 N.Y.2d 481, 488-489). It was equally plausible that defendant intended to defraud the undercover officer.