Defendant appeals from a judgment of the Criminal Court, New York County (A. Kirke Bartley, Jr., J.), rendered February 7, 2005, convicting him, upon a plea of guilty, of criminal facilitation in the fourth degree, and imposing sentence.

PER CURIAM:

Judgment of conviction (A. Kirke Bartley, Jr., J.), rendered February 7, 2005, affirmed.

The complaint sufficiently set forth the factual basis for the underlying drug sale charge by alleging, inter alia, that defendant gave a "small object" to a "separately charged" individual (one Bumpass) in exchange for money and that police recovered crack cocaine from Bumpass "following the . . . transaction." The complaint thus contained "facts of an evidentiary character" (CPL 100.15 [3]) demonstrating "reasonable cause" to believe that defendant committed the crime charged (CPL 100.40[4][b]; see People v Graham, 211 AD2d 55 [1995], lv denied 86 NY2d 795 [1995]; see also People v Bolden, 6 AD3d 315 [2004], lv denied 3 NY3d 837 [2004][upholding drug sale conviction after trial where "the observing officer was unable to identify a small object placed in a buyer's hand in exchange for currency, but drugs were recovered from the buyer shortly thereafter"]). The complaint is not jurisdictionally infirm due to the absence of specific allegations concerning the precise timing of defendant's arrest in relation to the other circumstances of the drug transaction, a matter which was best left for the trial that defendant eschewed through his guilty plea.
I concur
William P. McCooe, J. (Dissenting) [*2]

I respectfully dissent.

The complainant alleges that he is informed by an undercover police officer that he "observed the defendant give a separately charged individual, Jay Bumpass, a small object in exchange for a sum of U.S. currency." He was also informed that "following the above transaction, informant recovered crack/cocaine and a pipe/stem from buyer Bumpass' person."

The defendant pleaded guilty to criminal facilitation. The allocution by the Assistant District Attorney reads in part "you assisted another individual in selling crack cocaine to an undercover police officer."

The majority cites two cases supporting the facial sufficiency of the complaint which are distinguishable.

The first sentence of the headnote in People v Graham (211 AD2d 55, 55 [1st Dept 1995], lv denied 86 NY2d 795 [1995]) summarizes that factual situation and distinguishes this case:

The observation by an experienced police officer, in a "drug-prone" location, of five separate transactions in each of which defendant exchanged money for a small object he removed from a brown paper bag and thereafter placed the bag on the ground next to a fence about 10 feet away, gives rise to probable cause to arrest.

The police officer had participated in over 150 drug related arrests in the "very area" where the transaction occurred and the area was "littered with empty crack vials" on the day of the arrest.

There are no similar allegations in this complaint, that the alleged sale took place in a high crime area, that there was more than one "transaction," that the area was "littered with empty crack vials" or that the defendant had a brown bag and placed it on the ground.

People v Bolden (6 AD3d 315 [1st Dept 2004], lv denied 3 NY3d 837 [2004]) affirmed a conviction after trial where the issue was the sufficiency of the evidence and "drugs were recovered from the buyer shortly thereafter." Apart from the fact that this is a different fact pattern and different legal issue, there is no indication in the complaint specifying when the arrest of this defendant took place. If the arrest took place prior to the arrest of Bumpass, simultaneously or immediately following based on the allegations in this complaint, there would not be probable cause to arrest the defendant for the reasons previously stated in distingushing People v Graham (211 AD2d 55, supra).

A recent case reaching a different result is factually dissimilar (People v Cesar, NYLJ, Mar. 12, 2007, at 18, col 1 [Crim Ct, NY County, Mandelbaum, J.]). That court denied a motion to dismiss the complaint for facial insufficiency where the defendant was observed by a police detective handing a "small object" to a separately charged individual for currency. The additional facts present there were that "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 individuals pocket." This exchange took place in a "drug-prone location[s]" and there was "proof that the person with whom defendant exchanged a small object for money was immediately discovered to be in possession of small bags of marijuana..." There are no such allegations present here.The legal issue here is whether the complaint alleges facts which "provide reasonable cause to believe that the defendant committed the offense charged" (CPL Sec. 100.40 [4][b]). The complaint fails to allege "reasonable cause" that the "small object," otherwise nondescript, was [*3]crack cocaine or that it was the crack cocaine and pipe/stem recovered from Bumpass. Furthermore, there is no indication of the time interval between the alleged sale to Bumpass and the recovery of the drugs from Bumpass except "following the transaction..." Specifically a finding of "good cause" would require some showing that this "small object" was drugs and that it was the object sold to Bumpass or facts comparable to the distinguished cases. Absent such showing the complaint rests on speculation.

Therefore the complaint is jurisdictionally invalid, the conviction should be reversed and the accusatory instrument dismissed.

This constitutes the decision and order of the court.
Decision Date: April 3, 2007