Third Department: Insufficient Evidence of Intent to Sell Heroin

In People v. McCoy, decided February 26th, the Third Department determined that there was insufficient evidence that the defendant possessed heroin with the intent to sell it. The court said:

"the People presented no direct proof that defendant sold or attempted to sell heroin to any individual. [Officer] Gaulin did not testify to observing such a transaction, nor did [Eyewitness] David. And, notably, although David testified that she had observed a male standing outside the door for about half an hour and that she saw him speak to several people whom she described as behaving nervously, she was not able to describe the man at trial not even his race and she was unable to identify defendant as the man in question."

The court went on to say that intent to sell could not even be inferred from the circumstances presented at trial:

"Nor is there legally sufficient evidence from which to infer defendant's intent to sell heroin. At the time of his arrest, defendant was carrying no cash beyond a few coins (see People v Jones, 47 AD3d 961, 964 [2008], lvs denied 10 NY3d 808, 812 [2008]; People v Mendoza, 5 AD3d 810, 813-814 [2004], lv denied 3 NY3d 644 [2004]). No evidence was presented that he possessed a weapon or any paraphernalia commonly associated with the sale of drugs (see People v Jones, 47 AD3d at 964; People v Hawkins, 45 AD3d 989, 991 [2007], lv denied 9 NY3d 1034 [2008]; People v Barton, 13 AD3d 721, 723 [2004], lv denied 5 NY3d 785 [2005]; People v Tarver, 292 AD2d 110, 114 [2002], lv denied 98 NY2d 702 [2002]). And, significantly, no testimony established that the small quantity of heroin found in his possession was inconsistent with personal use (see People v Patchen, 46 AD3d 1112, 1113 [2007], lv denied 10 NY3d 814 [2008]; People v Barton, 13 AD3d at 723; People v Tarver, 292 AD2d at 114)."