Opinion
No. 2012NY020323.
2012-05-25
The PEOPLE of the State of New York, v. Tracey DUBOIS, Defendant.
Felicia A. Bunbury, New York County Legal Aid Society, for Defendant. ADA Christopher Hirsch, New York County District Attorney's Office, for People.
Felicia A. Bunbury, New York County Legal Aid Society, for Defendant. ADA Christopher Hirsch, New York County District Attorney's Office, for People.
MICHELLE A. ARMSTRONG, J.
The defendant is charged by misdemeanor information with one count of Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree pursuant to PL § 178.10. The complaint and supporting depositions filed therewith allege that on or about March 10, 2012, at about 5:20 a.m. inside of 333 Avenue of the Americas in the County and State of New York the defendant committed the above indicated offense in that:
Deponent (P.O. Michael Disanto) states that deponent observed (via live surveillance) defendant exchange a small object for what appeared to be a sum of U.S. Currency with separately charged defendant Ian Seeram
Deponent states that deponent is informed by Sergeant Matthew Delaney (informant) that informant recovered a bottle containing 19 pills of Vistaril (HYDROZINE HYDOCHLORIDE) from defendant's front right pants pockets.
Deponent further states that defendant stated (in substance) to deponent THEY ARE PRESCRIPTION SLEEPING PILLS. A PHARMACIST GAVE THEM, I SAW THAT HE WAS DRUNK AND AT THE ATM, I SAW AN OPPORTUNITY.
Defendant now moves to dismiss the accusatory instrument as facially insufficient pursuant to CPL §§ 100.40 and 170.30 on the ground that the information fails to allege any facts of an evidentiary nature supporting the offense charged. Conversely, the People posit that the information is facially sufficient to establish reasonable cause that defendant committed the charged crime. For the reasons stated below, defendant's motion to dismiss for facial insufficiency is hereby GRANTED.
ANALYSIS:
To be sufficient on its face, a misdemeanor information must contain non-hearsay factual allegations providing reasonable cause to believe that the defendant committed the offense(s) charged; and which establish, if true, every element of the offense(s) charged (CPL §§ 100.15[3]; 100.40[1][b] and [c]. The reasonable cause standard is met by allegations of an evidentiary nature that disclose facts or circumstances which, collectively, bear such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense(s) was committed and that defendant committed it (CPL § 70.10[2] ). An information which fails to satisfy this prima facie case requirement is jurisdictionally defective. (CPL §§ 170.30 and 170.35; People v. Alejandro, 70 N.Y.2d 133 [1987];People v. Dumas, 68 NY3d 729 [1986] ).
This court recognizes that a prima facie case requirement is not the same as the burden of proof, beyond a reasonable doubt, required at trial. People v. Henderson, 92 N.Y.2d 677, 680 (1999). In reviewing an accusatory instrument for facial insufficiency, “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense; [it] should be given a fair and not overly restrictive or technical reading.” People v. Casey, 95 N.Y.2d 354, 360 (2000). Moreover, the Court of Appeals, in People v. Allen (99 N.Y.2d 378, 385 [1998] ), held that at the pleading stage, all that is required are factual allegations that are sufficiently evidentiary in character and which tend to support the charges. In assessing the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. However, the court is not required to abandon common sense or the significance of the alleged conduct. See People v. Gibble, 2 Misc.3d. 510, 512 (Crim Ct. N.Y. County 2003).
This Court finds that the instant information fails to establish reasonable cause that the defendant committed the crime charged. For the reasons indicated below defendant's motion to dismiss is GRANTED in its entirety.
Penal Law § 178.10, entitled Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree, provides that a person is guilty of this offense when he/she commits a criminal diversion act. The statute further defines a criminal diversion act as an “act or acts in which a person knowingly transfers or delivers, in exchange for anything of pecuniary value, a prescription medication or device with knowledge or reasonable grounds to know that the recipient had no medical need for it. See PL § 178.00(3)(a). A prescription medication is a medication for which a prescription is required in order to be lawfully sold, delivered, or distributed by any person authorized by law to engage in the practice of the profession of pharmacy. See PL § 178.00(1).
In this case, the information merely alleged that the deponent police officer observed, via video surveillance, the defendant exchange a small nondescript object in exchange for what “appeared” to be U.S. Currency to a separately charged defendant (hereinafter the buyer). Next the informant sergeant alleges that he recovered a bottle containing 19 pills of Vistaril (HYDROZINE HYDOCHLORIDE) from the defendant's person upon his arrest. Fatally absent from the pleadings are any allegations which tend to establish a nexus between the small unidentified object defendant allegedly transferred to the buyer, and the prescription pills subsequently recovered from the defendant.For example, in People v.. McRay, (51 N.Y.2d 594, 435 N.Y.S.2d 679 [1980] ), the Court of Appeals set forth the various factors which may give rise to reasonable cause that a narcotics transaction has occurred. Such factors, include but are not limited to, the exchange of money; whether the location of observation is a high-crime and/or drug prone location; the police officer's experience and training in drug investigations; and any additional evidence of furtive or evasive behavior on the part of the participants. Id., at 601, 604.
Courts have consistently found probable and/or reasonable cause exists upon allegations of the exchange of an unidentified object for U.S. Currency; however, such cases generally allege corroborative facts in addition to the single transaction itself from which the transfer of a narcotic and/or prescription medication may reasonably be inferred. See People v. Jones, 90 N.Y.2d 835 (1997)(probable cause to arrest may be established where experienced officers observed multiple exchanges of unidentified objects for money in drug-prone locations); People v. Graham, 211 A.D.2d 55 (1st Dep't 1995)(probable cause established when officer observed defendant in a drug-prone location complete 5 separate transactions involving the transfer of a small object for money); People v. Bass, 15 AD3d 287 (1st Dept 2005)(probable cause established where officer observed transaction of an object for money which was corroborated by the arrest and recovery of matching drugs from buyer); People v. Bolden, 6 AD3d 315 (1st Dep't 2004), lv den'd, 3 NY3d 837(officers observation of small object in exchange for U.S. Currency corroborated by similar drugs recovered from separately charged apprehended buyer); People v. Matienzo, 81 N.Y.2d 778, 593 N.Y.S.2d 785(1993)(officer's observation of a single transaction involving money for objects combined with defendant's flight upon the officer's approach, may give rise to reasonable cause).
Conversely, courts have consistently determined that where the allegations lack sufficient indicia of a drug transaction in combination with a transfer of money for a nondescript object, the case must be dismissed. See People v. Washington F., 167 A.D.2d 554 (2d Dept 1990)(observation of defendant handing “something out” to another individual in exchange for money failed to provide the requisite assurance that observer witnessed and illicit drug deal); People v. Batista, 156 A.D.2d 455 (2d Dept 1988)(officers observation of a single exchange of a small object and U.S. currency between the defendant and another man insufficient to establish probable cause); People v. Mills, 145 A.D.2d 578, App den'd, 73 N.Y.2d924 (1989)(it is not reasonably inferable that an object is, in fact, drugs where officer observed a single exchange of unknown shimmery object for money in drug-prone location).
Lastly, this Court is not persuaded by the People's contention that defendant's statement tends to support the transfer or deliver element of the Criminal Diversion statute. Rather, defendant's statement merely suggests that defendant viewed the separately charged defendant as an easy target to be victimized and makes no reference whatsoever to having transferred or delivered prescription medication to the separately charged buyer. More significantly, the pleadings are completely silent on issue of whether a pill(s) matching those recovered on defendant, was also recovered from the separately charged defendant.
Hence, the factual allegations contained in the instant accusatory instrument, without more, fails to establish reasonable cause that the defendant transferred and/or delivered a prescription medication to separately charged purported buyer in exchange for something of pecuniary value.
In accordance herewith, it is hereby
ORDERED that the defendant's motion to dismiss is GRANTED in its entirety.
The foregoing constitutes the opinion, decision, and order of the court.