People v. Acevedo, 192 A.D.2d 1094 (N.Y. App. Div. 1993). · Go Syfert
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People v. Acevedo, 192 A.D.2d 1094 (N.Y. App. Div. 1993). Cases Citing This Book View Copy Cite
5 citation events (2 in the last 25 years) across 3 distinct courts.
Strongest positive: People v. Wright (nyappdiv, 2016-05-05)
Top citers, strongest first. 2 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Wright
N.Y. App. Div. · 2016 · confidence medium
As there was none here, defendant’s conviction for criminal sale of a controlled substance in the second degree is reversed and the corresponding count of the indictment dismissed (see CPL 470.20 [2]; People v Acevedo, 192 AD2d 1094, 1094 [1993], lv denied 81 NY2d 1010 [1993]).
discussed Cited as authority (rule) Jones v. Stinson (2×)
E.D.N.Y · 2000 · confidence medium
See People v. Rodriguez, 203 A.D.2d 92, 92 , 610 N.Y.S.2d 217, 218 (1st Dep't 1994), aff'd, 85 N.Y.2d 586 , 627 N.Y.S.2d 292 , 650 N.E.2d 1293 (1995); People v. Acevedo, 192 A.D.2d 1094, 1094, 596 N.Y.S.2d 618, 619 (4th Dep’t), appeal denied, 81 N.Y.2d 1010 , 600 N.Y.S.2d 198 , 616 N.E.2d 855 (1993) (Table). 2 .
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The People of the State of New York
v.
Hector Acevedo
Appellate Division of the Supreme Court of the State of New York.
Apr 14, 1993.
192 A.D.2d 1094
1993 N.Y. App. Div. LEXIS 4109
Cited by 4 opinions  |  Published

—Judgment unanimously reversed on the law and indictment dismissed. Memorandum: Defendant was charged with criminal sale of a controlled substance in the first degree and conspiracy in the second degree, based on an attempted controlled buy of two or more ounces of cocaine by an undercover officer. At trial, the officer testified that, when he asked a codefendant whether he had "the stuff”, the codefendant held up a bag that appeared to be a "white powder substance, cocaine, about two and a half to three ounces”. Defendant, however, insisted that the undercover officer enter the house to complete the deal, and the officer instead stalled and called for back-up. No drugs were recovered when the police arrived, and the undercover officer testified that he felt that defendant was trying to "rip [him] off.”

The People concede that the conviction of criminal sale of a controlled substance in the first degree must be reversed based on insufficient proof; that crime requires the sale of two or more ounces of a narcotic drug and, here, the "cocaine” was not weighed (cf., People v George, 67 NY2d 817, 819). Their argument that the conviction should be reduced to criminal sale of a controlled substance in the third degree, for which there is no minimum weight requirement, lacks merit because the proof was insufficient to establish that the substance was cocaine (see, People v Fleary, 85 AD2d 742; cf., People v Christopher, 161 AD2d 896, lv denied 76 NY2d 786; People v Jewsbury, 115 AD2d 341). In addition, the conspiracy conviction must be reversed because the People failed to prove that defendant intended to sell cocaine, and thus failed to prove the specific intent for the felony towards which, according to the indictment, the conspiracy was directed (see, People v Ozarowski, 38 NY2d 481, 488-489). It was equally plausible that defendant intended to defraud the undercover officer. (Appeal from Judgment of Erie County Court, Drury, J.— Criminal Sale Controlled Substance, 1st Degree.) Present— Denman, P. J., Pine, Lawton, Doerr and Davis, JJ.