Charged by information with criminal sale of marijuana in the fourth degree and criminal possession of marijuana in the fifth degree, defendant previously moved to dismiss both counts of the accusatory instrument for facial insufficiency. This court denied the motion in its entirety, and defendant now moves for leave to reargue as to the sale count alone. Although defendant's motion to reargue is granted (see CPLR 2221 [d]), the court, upon reargument, adheres to its prior determination.

In order to be sufficient on its face, an information must provide reasonable cause to believe that the defendant has committed the crime charged and contain nonhearsay allegations that, if true, establish every element of the crime and its commission by the defendant (see CPL 100.40 [1] [b], [c]). In effect, defendant contends that the facts alleged in the accusatory instrument do not provide reasonable cause to believe that what was sold here was marijuana.

The misdemeanor complaint (as supplemented by two positive field tests) alleges that defendant was observed by a police detective handing "a small object" to an identified, separately charged individual, in exchange for which the second individual handed United States currency to defendant. Thereafter, the detective is alleged to have recovered four bags of marijuana from the ground where defendant was seen to throw them, 32 bags of marijuana from defendant's pants pocket, and, most significantly, two bags of marijuana from the second individual's jacket pocket.

Defendant maintains that these allegations are insufficient to establish a criminal sale of marijuana, because of the failure to allege that defendant was observed exchanging what the officer could specifically see to be marijuana at the time of the exchange. In other words, defendant contends that an officer's observation of the exchange of "a small object" for money, coupled with the recovery of marijuana from the alleged buyer, cannot suffice to establish a sale of marijuana. Were that so, however, a defendant could never be convicted of criminal sale of marijuana — or of a controlled substance — as a result of an "observation sale" unless the observing officer were standing close enough to the transaction to be able to swear that he or she could specifically tell that the small object exchanged was in fact the illicit drug with whose sale the defendant has been charged.

Typically, though, illegal drug exchanges occur quickly and surreptitiously, with [*2]conscious efforts undertaken to ensure that the nature of the object being exchanged cannot be easily seen by onlookers (cf. People v Graham, 211 AD2d 55, 59 [1st Dept 1995] ["(s)treet sellers of narcotics should not enjoy an immunity from arrest or search merely because they are able to conceal their wares during the exchange; concealment is itself a common characteristic of illegal conduct"]). Accordingly, reasonable (or probable)^[FN1] cause to arrest may be established by observations by experienced officers of exchanges in drug-prone locations of unidentified and unidentifiable objects for money (see People v Jones, 90 NY2d 835 [1997]; People v Rodriguez, __ AD3d __, 2007 NY Slip Op 00585 [1st Dept, Jan. 30, 2007]; People v Antegua, 7 AD3d 466 [1st Dept 2004]; see also People v Bass, 15 AD3d 287 [1st Dept 2005] [observation of drug transaction corroborated by arrest of buyer in possession of cocaine; probable cause established]).

Nor is direct evidence that a defendant has been seen exchanging drugs for money required to establish guilt at trial. After all, legally sufficient proof of criminal culpability may be based on circumstantial evidence (see People v Grassi, 92 NY2d 695, 697 [1999] [determination whether "evidence before the jury was legally sufficient to support a finding of guilt beyond a reasonable doubt is the same for circumstantial and non-circumstantial cases — whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt"]; Edith L. Fisch, Fisch on New York Evidence § 161, at 91 [2d ed]).

Here, proof that the person with whom defendant exchanged a small object for money was immediately thereafter discovered to be in possession of small bags of marijuana would constitute circumstantial evidence that what defendant sold was marijuana. Indeed, testimony that a defendant was seen exchanging a small object for money, coupled with the recovery of drugs from the alleged buyer, has repeatedly been held sufficient to establish guilt at trial (see e.g. People v Sutton, 33 AD3d 411 [1st Dept 2006] ["(i)n this observation sale case, the evidence warranted the conclusion that the drugs recovered from the buyer's possession were the unidentified objects that defendant had just given to the buyer in return for money"; verdict based on legally sufficient evidence]; Matter of Mitchell W., 12 AD3d 327 [1st Dept 2004]; People v Bolden, 6 AD3d 315 [1st Dept 2004]). That being so, the same allegations must surely suffice for pleading purposes. After all, "[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, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).

Defendant's reliance on People v Gonell (7 Misc 3d 438 [Crim Ct, NY County 2005]) is misplaced. In Gonell, the defendant had, according to the information, been observed handing "a [*3]number of small white objects" to another person in exchange for money. Thereafter, a detective recovered from the alleged buyer "four bags of a white, rock-like substance" (which tested negative for the presence of a controlled substance) and one bag of marijuana. Based on these allegations, the court dismissed the charge of criminal sale of marijuana, but denied defendant's motion to dismiss the separate count charging sale of an imitation controlled substance (see Public Health Law § 3383 [2]). As the court explained, "[t]he gravamen of the defendant's motion to dismiss [the marijuana-sale] count is that the information contains no allegation that the sale observed by the officer included the bag of marijuana. The defendant's argument is correct. The information does not allege that the undercover officer saw the defendant hand [the buyer] the bag of marijuana. It states only that he saw the defendant hand him a number of small white objects'" (7 Misc 3d at 440).

The exchange of these objects, of course, properly gave rise to the charge of sale of an imitation controlled substance. But because there were no allegations that the defendant had been seen exchanging the bag of marijuana that was also recovered from the buyer, there was simply no evidence to support the conclusion that the defendant had sold marijuana — as opposed to merely selling those bags that contained an imitation controlled substance. Simply put, the defect in the marijuana-sale count in Gonell was not, as defendant here contends, that a drug-sale charge cannot be based on an observation of an exchange of an unidentified object, but was instead that the small objects observed to be exchanged in that case reflected the sale of something other than marijuana. In this case, by contrast, the alleged exchange of a small object for money, coupled with the subsequent recovery from both defendant and the buyer of multiple bags of marijuana — but nothing else — provides reasonable cause to believe that what defendant sold was marijuana.

Accordingly, defendant's motion to dismiss is denied.

This opinion shall constitute the decision and order of the court.