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Defendant Charged with Possession of a Controlled Substance


The Court of Appeals held that a conviction of criminal sale of a controlled substance premised upon an offering for sale theory must be supported by evidence of a bona fide offer to sell, which means that the evidence must show that the accused had both the intent and the ability to proceed with the sale. The accused assert that the evidence supporting the conviction was insufficient because no drugs were recovered by the police upon their arrest. A New York DWI Lawyer said they also claim that the court erred in failing to specifically instruct the jury that it could convict the accused only if it found that they had both the intent and ability to proceed with the sale.

The case originates from community complaints received by the New York City Police Department regarding drug crime and narcotics sales in Manhattan. A New York DWI Lawyer said in response, an undercover buy-and-bust operation was organized for the afternoon of April 24, 1998, in which undercover officer would attempt to purchase drugs at the location, a location where he had previously purchased crack and guilty of cocaine possession.

On that day, the undercover approached a group of individuals using the street term for crack, asked where he could get some. The accused the undercover what he was looking for and the undercover responded. The accused told the undercover he only had $10 per bag and the undercover ordered two dimes.

The accused told the undercover to walk with him, which he did. He then asked the undercover if he was a police officer, a confidential informant, an FBI agent or a drug enforcement agent. The officer denied being any. After the exchange, the accused told the undercover to wait. The accused approached a white Mustang, which was in front of them, and began talking to a man who became a co-accused of the accused. The co-accused was seated in the driver’s seat. While the conversation was taking place, a third man exited from the passenger seat of the car and approached the undercover to look him over.

After the accused finished speaking to the co-accused, the accused returned to the undercover and directed him to speak to the man in the vehicle. The undercover asked the co-accused for two dimes. Expecting to receive two dimes, the undercover handed the co-accused a $20.00 of prerecorded buy money.

Instead of turning over the crack, the co-accused held out a crack pipe and told the officer to smoke crack from the pipe. The undercover observed that in the pipe there was a small rock, off-white in color, which, from his experience, appeared to be crack. In accordance with the policy of the Police Department covering the situation, the undercover refused the request. The co-accused inside the car said that the undercover will get his crack as soon as he takes a hit so he knows that he is not a cop. A Nassau County DWI Lawyer said the undercover then told the co-accused to give him the crack that he was purchasing or to give back the $20. The third man returned to the car and conversed with the co-accused who handed something to the third man. The third man exited the car and returned to the undercover, holding out a crack pipe and telling him to take a hit. The undercover again demanded the two dimes of crack or his money, but the third man insisted that he take a hit before he can get his stuff.

A second undercover officer, observing the events from 50 feet away, became concerned for the safety of the undercover because of the length of time it was taking to complete the transaction. Accordingly, the ghost radioed backup officers to move in. Moments later, the backup team arrived at the scene.

Although the co-accused and the third man were arrested almost immediately, the accused had begun walking away from the location just before the backup team arrived. The ghost, however, kept the accused under constant surveillance, except for a few brief moments when the accused turned the corner. As a result of a transmission radioed by the ghost, the accused was arrested a few blocks away. Immediately after securing the arrest location, the officers conducted a search. They were unable to locate the crack pipe, the prerecorded buy money, or any drugs.

Based upon the factual scenario, the accused parties were each indicted, and subsequently tried, for criminal sale of a controlled substance. At the trial, the jury sought a conviction premised upon an offering for sale theory, asserting that, since accused men made a bona fide offer to sell crack cocaine, the elements of the drug crime charged had been established.

After both the jury and the defense rested, the accused parties moved for a trial order of dismissal, alleging that, since no drugs were recovered by the police, a conviction of criminal sale of a controlled substance in the third degree could not be sustained. The Supreme Court denied the motion.

Abusing the use of controlled substance only causes us troubles and problems. The government through the help of different government and private agencies is doing the best way possible to alleviate drug crime related incidents. If you find yourself in the middle of drug crime actions, be sure to consult the New York Drug Crime Attorneys of Stephen Bilkis and Associates. Criminal lawsuits would require you to hire a NY Criminal Lawyer to represent you in court.

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