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.
To Be Cont….
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