Brooklyn Appellate Court reverses drug conviction of Staten Island man

December 27, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

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The testimony of a Staten Island undercover police officer who was blocked from viewing a suspected drug sale is not sufficient to sustain a drug conviction, the Brooklyn Appellate Division ruled.

Hoping to nab a drug dealer, an undercover officer approached a man in the courtyard of a housing area on Hendricks Avenue in Staten Island. After purchasing a quantity of marijuana, the officer told the man that he had $200 to buy crack cocaine. The suspect used the officer’s cellphone to reach his drug contact, presumably co-defendant Mustafa Curry.

After the phone call was made, Curry’s co-defendant left the officer’s line of vision, announcing that his drug connection had arrived. The officer saw Curry in the driver’s seat, a woman in the passenger seat, and Curry’s co-defendant in the back seat of the vehicle.

A few minutes later, the co-defendant returned to the officer, handing him a few bags of crack. Having received the drugs he came for, the officer proceeded to walk away, turning his head in time to witness Curry’s co-defendant extending his hand through the driver’s-side window where Curry was seated.

At trial, evidence revealed that the officer did not actually witness money or drugs transfer hands from Curry to his co-defendant. In fact, the officer testified that while he did not witness an actual transaction, “based upon his training and experience as an undercover officer who had made over 500 buys, he believed that the co-defendant received drugs from the defendant inside the vehicle,” court documents noted.

A panel of Appellate Division, 2nd Department justices ruled that evidence presented by the officer and the prosecution was not enough to sustain the charge of criminal sale of a controlled substance levied against Curry. Staten Island prosecutors argued that Curry was an accomplice to the drug sale and thus guilty via the theory of accomplice liability.

The Appellate Division noted that in order for Curry to stand as an accomplice, he had to have shared the same mental state to “‘knowingly and unlawfully’ sell drugs and that, in furtherance thereof, the defendant solicited, requested, commanded, importuned, or intentionally aided the seller in the commission of the crime.”

In Curry’s case, his co-defendant had the intent to knowingly sell illegal drugs to the undercover officer. There was no evidence, and the court found that Curry possessed the same intent. The prosecution could not determine whether or not the number called by Curry’s co-defendant was in fact Curry’s cell phone number. It could have been a mere coincidence that Curry’s car appeared moments after the phone call was made.

Further, the police officer testified that he did not witness an exchange of drugs or money between Curry and his co-defendant.

The Appellate justices did note that “rational inferences” could be “drawn from the evidence presented at trial.” However, those inferences were not enough to support Curry’s conviction beyond a reasonable doubt.

The justices reversed the judgment against Curry and dismissed the indictment.

Justices Peter Skelos, Ruth Balkin, John Leventhal and Sandra Sgroi sat on the panel and joined the unsigned unanimous decision and order of the court.