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

1207
KA 15-00614
PRESENT: SCUDDER, P.J., SMITH, CENTRA, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                                MEMORANDUM AND ORDER

JAMEL NELLONS, DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR APPELLANT.

PAUL G. CAREY, SYRACUSE, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (John
J. Brunetti, A.J.), dated July 8, 2014. The order granted in part the
motion of defendant to dismiss the indictment by reducing the first
count thereof to criminal possession of a controlled substance in the
seventh degree.

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

     Memorandum: After defendant was arrested and charged with
possessing crack cocaine, the People presented evidence to a grand
jury, which issued an indictment charging him with criminal possession
of a controlled substance in the third degree (Penal Law § 220.16
[1]), and criminal possession of a controlled substance in the fourth
degree (§ 220.09 [1]). Defendant moved to dismiss the indictment
based on the alleged insufficiency of the evidence presented to the
grand jury, and Supreme Court granted the motion in part by reducing
the first count of the indictment to criminal possession of a
controlled substance in the seventh degree (§ 220.03). The People
appeal, and we affirm. The testimony at the grand jury establishes
that two police officers pursued a vehicle driven by defendant, and
that one of the officers pursued defendant after he exited the still-
moving vehicle and fled on foot. Defendant was found with two bags of
crack cocaine weighing a total of eight grams. One officer testified
that a drug user would not possess that amount of drugs, and that a
drug user would not possess drugs without also having utensils with
which to consume them.

     We reject the People’s contention that the evidence was
sufficient to make out a prima facie case that defendant possessed the
cocaine with the intent to sell it. Although “defendant’s possession
of a ‘substantial’ quantity of drugs can be cited as circumstantial
                                 -2-                          1207
                                                         KA 15-00614

proof of an intent to sell . . . , it cannot be said as a matter of
law that the quantity of uncut and unpackaged drugs possessed in this
case permitted an inference that defendant intended to sell them.
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; cf. People v Smith, 213 AD2d 1073, 1074). We note that the
“modest quantity of drugs” in Sanchez was 3½ ounces of cocaine, far
more than the drugs possessed by this defendant, which amounted to
less than a of an ounce. Consequently, the court properly concluded
that the evidence was insufficient to establish that defendant
possessed a controlled substance with intent to sell it (see generally
People v Smith [Nicole], 74 AD3d 1249, 1250; People v Lamont, 227 AD2d
873, 875).




Entered:   November 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
