People v. Green

189 A.D.2d 893, 1993 N.Y. App. Div. LEXIS 593

Opinion

Motion by the respondent for reargument of an appeal from a judgment of the Supreme Court, Suffolk County (Rohl, J.), rendered March 10, 1989, which was decided by decision and order of this Court dated December 28, 1992. [188 AD2d 662.]

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the motion for reargument is granted, and, upon reargument, the prior determination is adhered to.

As stated in our decision and order dated December 28, 1992, the indictment, inter alia, alleged that the defendant, while acting in concert with Harry Biting, knowingly and unlawfully sold cocaine to a person known to the Grand Jury. The actual exchange between the undercover officer and Biting occurred at a location approximately one mile from where Biting allegedly received the cocaine from the defendant. Both the prosecution’s response to the defendant’s pretrial demand for discovery and the instructions to the jury make it clear that it was the transaction at this second location between Elting and the undercover officer that was the subject of the indictment.

Absent the hearsay statements by Elting as to the source of the cocaine, we find that there was legally insufficient evidence to establish that the defendant was involved in the alleged transaction. While there may have been some evidence of a transaction between the defendant and Elting, such a transaction was not alleged in the indictment. In light of the insufficiency of the evidence connecting the defendant to the alleged transaction between Elting and the undercover officer, the indictment must be dismissed. Bracken, J. P., Lawrence, O’Brien and Santucci, JJ., concur.