This involves a case where the court ruled that the indictment against the defendant be reinstated.
During 1981 police officers conducted a large-scale investigation into the distribution of narcotics in New York, Queens and Bronx counties. The criminal investigation, which included a number of drug purchases by an undercover officer and involved the extensive use of electronic eavesdropping and surveillance, led to seven indictments charging the 12 subjects of the investigation, among them defendant, with conspiracies to sell narcotics, and with the sale and possession of heroin and cocaine. The charges against defendant were based on his alleged participation in heroin sales to the undercover officer on June 26, August 19, and September 11, 1981, and an attempted heroin sale on September 24, 1981. As a result defendant were charged in one of the indictments with one count of conspiracy in the second degree for their activities from May 28, 1981 to September 22, 1981. They were also charged with two counts of criminal sale of a controlled substance in the second degree and four counts of criminal possession of a controlled substance in the third degree for the August 19 and September 11 sales.
Trial Term dismissed the indictment against defendant, finding that that evidence was insufficient as to him to make out a prima facie case for either the sales or the conspiracy.
The court reversed and reinstated the since viewing the evidence as a whole, and according to the grand jury the right to draw reasonable inferences from that evidence, that the People presented a prima facie case. Such a case is made out, regardless of whether a petit jury will eventually find the accused guilty beyond a reasonable doubt, when the People offer evidence which, if unexplained or uncontradicted, establishes every element of an offense and the accused’s commission thereof. (See CPL 70.10; People v. Pelchat, 62 N.Y.2d 97, 476 N.Y.S.2d 79, 464 N.E.2d 447; People v. Calbud, Inc., 49 N.Y.2d 389, 394, 426 N.Y.S.2d 238, 402 N.E.2d 1140; People v. Puma, 97 A.D.2d 740, 468 N.Y.S.2d 890.) Presented with direct evidence of three drug sales and one attempted sale, the grand jury could reasonably infer that defendant was the mystery supplier in all four transactions. In each case, the undercover officer offered to buy heroin from a co-conspirator, who, though he would take payment, made it quite clear that he was getting his drugs from someone else. The manner by which the drugs were obtained and their source were shown by a co-conspitrator’s routine from the time he received the officer’s order and the time he made delivery. Since no other event intervened to alter the original plan for delivery, it is obvious that the availability of the heroin was tied to defendant.
While defendant was not separately charged with the June 26th sale, and his participation in meetings that preceded it might not be sufficient to establish his involvement in that sale, nevertheless, his two meetings with another co-defendant during a crucial time frame were certainly relevant to the conspiracy charge. While there might be an innocent explanation for these meetings, the grand jury, as the fact finder, was entitled to make its own determination as to whether they evidenced defendant’s participation in the conspiracy to sell heroin.
In conclusion, the People made a prima facie showing that defendant engaged in a conspiracy to sell drugs and that he supplied heroin for his co-conspirator to sell to the undercover officer. His participation in the August 19th and September 11th sales was proven by evidence that he met with co-defendant at a critical time on those dates and from which the grand jury could infer that he supplied co-defendant with the heroin. Defendant was also shown to have participated in the June 26th sale, and to have evinced a willingness to supply heroin on September 24th. This evidence was sufficient to sustain an accusation that defendant participated in both the conspiracy and two of the drug sales.
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