44 A.D.2d 841 | N.Y. App. Div. | 1974
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered March 15, 1972, convicting him of criminally selling a dangerous drug in the third degree, after a nonjury trial, and imposing sentence. Judgment reversed, on the law and the facts, and indictment dismissed. Defendant’s conviction must be reversed and the indictment dismissed because the trial court’s verdict was against the weight of the evidence (CPL 470.20, subd. 5). On the morning of September 24, 1971 defendant was sentenced to a conditional discharge following his conviction of the crime of possession of narcotics. That very evening an undercover policewoman allegedly went to defendant’s apartment, never having seen or dealt with him before, and purchased a “spoon” of heroin from him for $30. That “spoon” of heroin was placed into, a glassine envelope. Various members of her backup team testified that from their vantage point on the street they had observed the undercover officer enter defendant’s apartment. No testimony was offered to explain why such a purchase was attempted. An analysis of the evidence adduced at the trial convinces us that defendant’s guilt was not established beyond a reasonable doubt. The glassine envelope allegedly purchased from defendant weighed only eight grains and was what is referred to in the narcotics trade as a “nickel bag” which should have sold for between $2 and $8. The undercover agent testified that she had been in defendant’s presence for about 15 minutes and that he had been barechested that entire time. There were two other couples in the apartment who appeared to be under the influence of narcotics. When the officer entered the apartment, defendant was allegedly engaged in putting white powder into tinfoil envelopes. He simply asked the officer how much she wanted and then packaged it for her. The officer testified that she had not observed any distinguishing marks on defendant’s body, except he might have had a “track” or a scab on his left arm. She did not see any bullet wounds on his chest. During defendant’s testimony he removed