| People v Carlin |
| 2019 NY Slip Op 04788 [173 AD3d 1363] |
| June 13, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Appellant, v Patrick J. Carlin, Respondent. |
Gary M. Pasqua, District Attorney, Canton (Sara E. Charpentier of counsel), forappellant.
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for respondent.
Clark, J. Appeal from an order of the County Court of St. Lawrence County (Richards, J.),entered February 23, 2018, which, upon reviewing the grand jury minutes pursuant to astipulation in lieu of motions, dismissed the indictment.
Following two controlled transactions in which he allegedly sold cocaine to a confidentialinformant (hereinafter CI), defendant was charged by indictment with two counts each ofcriminal sale of a controlled substance in the third degree and criminal possession of a controlledsubstance in the third degree. The People and defendant subsequently entered into a stipulation inlieu of motions under which they agreed, among other things, to have County Court review thegrand jury minutes to determine whether the evidence was legally sufficient to support theindictment (see CPL 210.20 [1] [b], [c]; 210.30) and whether the integrity of the grandjury proceedings had been impaired (see CPL 210.20 [1] [c]; 210.35 [5]). Uponconducting that review, County Court concluded that the People did not present competentevidence to establish that the substance possessed and sold by defendant was cocaine. The courtfurther found that the integrity of the grand jury proceedings had been impaired by the CI havingbeen permitted to testify using only his CI number, without the People making a record as to thereason for concealing his name from the grand jury or taking steps to memorialize the CI'sidentity "by exhibit or testimony placed on the record outside the presence of the grand jury, forverification and review in further proceedings as the need may arise." Consequently, CountyCourt dismissed the indictment, with leave to the People to re-present the matter to another grandjury. The People appeal.
We affirm. In assessing whether dismissal of an indictment is warranted under CPL 210.20(1) (b), a reviewing court must assess whether the People presented legally sufficient evidence toestablish the offense or offenses charged (see People v Jennings, 69 NY2d 103, 115[1986]; see also CPL 190.65 [1] [a]). " 'Legally sufficient evidence' meanscompetent evidence which, if accepted as true, would establish every element of an offensecharged and the defendant's commission thereof" (CPL 70.10 [1]; see People v Grant, 17 NY3d 613,616 [2011]; People v Swamp, 84 NY2d 725, 729-730 [1995]). "The reviewing court mustconsider whether the evidence, viewed most favorably to the People, if unexplained anduncontradicted—and deferring all questions as to the weight or quality of theevidence—would warrant conviction" (People v Swamp, 84 NY2d at 730; seePeople v Jennings, 69 NY2d at 115; People v Park, 163 AD3d 1060, 1061 [2018]). "[I]n a drug-relatedprosecution[, as we have here,] the People's case is legally sufficient if the evidence provides a'reliable basis' for inferring the presence of a controlled substance" (People v Swamp, 84NY2d at 730, quoting People v Kenny, 30 NY2d 154, 157 [1972]; accord People vO'Neill, 285 AD2d 669, 671 [2001]). "More than conclusory assertions that the defendantpossessed a drug are required at the [g]rand [j]ury stage" (People v Swamp, 84 NY2d at730; accord People v O'Neill, 285 AD2d at 671).
The grand jury testimony here did not provide a reliable basis upon which to infer that thesubstance allegedly possessed and sold by defendant was a narcotic drug—an element ofall four charged offenses (see Penal Law §§ 220.16 [1]; 220.39 [1]).The evidence presented to the grand jury consisted of sparse testimony from the CI and aninvestigator involved in the controlled transactions, with most of the substance of that testimonyhaving been supplied through leading questions. As to the first transaction, the CI testified, in aconclusory manner, that he believed the substance to be crack cocaine, without providing anydescription of the substance or explanation for his belief (see People v O'Neill, 285 AD2dat 672), and, with respect to the second transaction, the CI did not express any belief as to thenature of the substance he received from defendant.[FN*] Additionally, although the investigator testifiedthat he received white chunky substances from the CI, his testimony surrounding the testing ofthose substances was sorely lacking. He did not provide any detail as to his training andexperience in field testing, explain how field testing occurs or specifically identify what he did inthis case to determine that both substances were cocaine. Thus, upon our review of the grand juryevidence, we agree with County Court that the evidence was legally insufficient to support theindictment (compare People v Swamp, 84 NY2d at 731, 733).
In light of our determination, we need not address the People's remaining arguments.
Lynch, J.P., Devine, Aarons and Pritzker, JJ., concur. Ordered that the order is affirmed.
Footnote *:The CI did not evenaffirmatively testify to receiving a substance from defendant during the second transaction;rather, the prosecutor implies such receipt through his leading questions, including his inquiry asto whether the CI "basically did the same transaction again."