Charged by information with criminal sale of marijuana in the fourth degree and criminal possession of marijuana in the fifth degree, defendant previously moved to dismiss both counts of the accusatory instrument for facial insufficiency.
A New York Criminal attorney said that in order to be sufficient on its face, an information must provide reasonable cause to believe that the defendant has committed the crime charged and contain nonhearsay allegations that, if true, establish every element of the crime and its commission by the defendant. In effect, defendant contends that the facts alleged in the accusatory instrument do not provide reasonable cause to believe that what was sold here was marijuana.
The misdemeanor complaint alleges that defendant was observed by a police detective handing “a small object” to an identified, separately charged individual, in exchange for which the second individual handed United States currency to defendant. Thereafter, the detective is alleged to have recovered four bags of marijuana from the ground where defendant was seen to throw them, 32 bags of marijuana from defendant’s pants pocket, and, most significantly, two bags of marijuana from the second individual’s jacket pocket.
Defendant maintains that these allegations are insufficient to establish a criminal sale of marijuana, because of the failure to allege that defendant was observed exchanging what the officer could specifically see to be marijuana at the time of the exchange. In other words, defendant contends that an officer’s observation of the exchange of “a small object” for money, coupled with the recovery of marijuana from the alleged buyer, cannot suffice to establish a sale of marijuana.
Typically, though, illegal drug exchanges occur quickly and surreptitiously, with conscious efforts undertaken to ensure that the nature of the object being exchanged cannot be easily seen by onlookers. Accordingly, reasonable or probable cause to arrest may be established by observations by experienced officers of exchanges in drug-prone locations of unidentified and unidentifiable objects for money.
Nor is direct evidence that a defendant has been seen exchanging drugs for money required to establish guilt at trial. After all, legally sufficient proof of criminal culpability may be based on circumstantial evidence.
Here, proof that the person with whom defendant exchanged a small object for money was immediately thereafter discovered to be in possession of small bags of marijuana would constitute circumstantial evidence that what defendant sold was marijuana. Indeed, testimony that a defendant was seen exchanging a small object for money, coupled with the recovery of drugs from the alleged buyer, has repeatedly been held sufficient to establish guilt at trial. That being so, the same allegations must surely suffice for pleading purposes. After all, “so long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading”.
The exchange of these objects, of course, properly gave rise to the charge of sale of an imitation controlled substance. But because there were no allegations that the criminal defendant had been seen exchanging the bag of marijuana that was also recovered from the buyer, there was simply no evidence to support the conclusion that the defendant had sold marijuana as opposed to merely selling those bags that contained an imitation controlled substance. Simply put, the defect in the marijuana-sale count was not, as defendant here contends, that a drug-sale charge cannot be based on an observation of an exchange of an unidentified object, but was instead that the small objects observed to be exchanged in that case reflected the sale of something other than marijuana. In this case, by contrast, the alleged exchange of a small object for money, coupled with the subsequent recovery from both defendant and the buyer of multiple bags of marijuana but nothing else provides reasonable cause to believe that what defendant sold was marijuana.
Accordingly, defendant’s motion to dismiss is denied.
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