Panel Finds Drug Conviction Not Supported by Evidence

, New York Law Journal

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With an undercover officer unable to witness an exchange of money or drugs between a defendant and another man, the defendant's drug dealing conviction was against the weight of the evidence, ruled a Brooklyn appellate panel.

The Appellate Division, Second Department in People v. Curry, 2012-00588, unanimously reversed Mustafa Curry's conviction for criminal sale of a controlled substance in the third degree and dismissed his indictment in a Dec. 18 decision.

At trial, an undercover officer testified about a Staten Island drug deal that began with a marijuana purchase from a codefendant. When the officer told the codefendant he wanted crack cocaine, the codefendant said he had to call "his man." The codefendant used the officer's phone to call a prepaid cell phone. There was no evidence the called number was assigned to Curry.

The codefendant said "he's here" and left. The officer saw Curry in the driver's seat, a woman in the front passenger's seat and the codefendant sitting behind Curry. The officer waited where he could not see Curry and the other man, who returned with the narcotics. After the transaction, the officer saw the codefendant put his hand through the open driver seat window where Curry sat, but acknowledged he did not see any hand off of money or drugs.

"We find that the rational inferences which can be drawn from the evidence presented at trial do not support the conviction beyond a reasonable doubt," said the panel.

Patricia Pazner of Appellate Advocates represented Curry.

Staten Island Assistant District Attorneys Morrie Kleinbart and Anne Grady appeared for the prosecution.

Justices Peter Skelos (See Profile), Ruth Balkin (See Profile), John Leventhal (See Profile) and Sandra Sgroi (See Profile) decided People v. Curry, 2012-00588.

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