        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

90
KA 15-01074
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

CURTIS HUDGINS, DEFENDANT-RESPONDENT.


WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
OF COUNSEL), FOR APPELLANT.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (EVAN B. HANNAY OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (John
J. Brunetti, A.J.), dated August 22, 2014. The order granted that
part of the motion of defendant to dismiss the first count of the
superseding indictment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: The People appeal from an order granting that part
of defendant’s motion to dismiss the first count of the superseding
indictment, charging him with criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]). After
defendant was arrested and charged with possessing crack cocaine, the
People presented evidence to a grand jury, which insofar as relevant
here, issued a superseding indictment charging that crime, among other
crimes. Defendant moved to dismiss the superseding indictment based
on the alleged insufficiency of the evidence presented to the grand
jury, and Supreme Court granted the motion in part by dismissing the
first count of the superseding indictment. We affirm.

     The testimony at the grand jury established that, following a
traffic stop, a large plastic bag containing 32 individually-packaged
bags of marihuana and $750 was found in defendant’s pocket, and a
separate bag containing 1.6 grams of cocaine was found in his cap.
One officer testified for the People that a drug user, as compared to
a drug seller, would not possess that amount of cocaine, and that a
drug user would not possess cocaine without also having utensils with
which to consume it, and defendant did not possess such utensils.

     We reject the People’s contention that the court erred in
determining that the evidence was insufficient to make out a prima
facie case that defendant possessed the 1.6 grams of cocaine with the
                                 -2-                            90
                                                         KA 15-01074

intent to sell it. Although “defendant’s possession of a
‘substantial’ quantity of drugs can be cited as circumstantial proof
of an intent to sell . . . , it cannot be said as a matter of law that
the quantity of uncut and unpackaged [cocaine] possessed in this case
permitted an inference that defendant intended to sell [it]. More
than mere possession of a modest quantity of drugs, not packaged for
sale and unaccompanied by any other saleslike conduct, must be present
for such an inference to arise” (People v Sanchez, 86 NY2d 27, 35; see
People v Nellons, 133 AD3d 1258, 1259). We note that the “modest
quantity of drugs” referenced in the above quote was 3 1/4 ounces of
cocaine (Sanchez, 86 NY2d at 35), far more than the quantity of
cocaine possessed by defendant herein, which amounted to less than one
eighth of one ounce (cf. People v Smith, 213 AD2d 1073, 1074; see
generally People v Smith [Nicole], 74 AD3d 1249, 1250; People v
Lamont, 227 AD2d 873, 875).




Entered:   March 25, 2016                      Frances E. Cafarell
                                               Clerk of the Court
