SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1207 

KA 15-00614 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, WHALEN, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT, 

V MEMORANDUM AND ORDER

JAMEL NELLONS, DEFENDANT-RESPONDENT. 

(APPEAL NO. 1.) 

 

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL

OF COUNSEL), FOR APPELLANT. 

PAUL G. CAREY, SYRACUSE, FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Onondaga County (John

J. Brunetti, A.J.), dated July 8, 2014. The order granted in part the

motion of defendant to dismiss the indictment by reducing the first

count thereof to criminal possession of a controlled substance in the

seventh degree. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed. 

Memorandum: After defendant was arrested and charged with

possessing crack cocaine, the People presented evidence to a grand

jury, which issued an indictment charging him with criminal possession

of a controlled substance in the third degree (Penal Law § 220.16

[1]), and criminal possession of a controlled substance in the fourth

degree (§ 220.09 [1]). Defendant moved to dismiss the indictment

based on the alleged insufficiency of the evidence presented to the

grand jury, and Supreme Court granted the motion in part by reducing

the first count of the indictment to criminal possession of a

controlled substance in the seventh degree (§ 220.03). The People

appeal, and we affirm. The testimony at the grand jury establishes

that two police officers pursued a vehicle driven by defendant, and

that one of the officers pursued defendant after he exited the stillmoving vehicle and fled on foot. Defendant was found with two bags of

crack cocaine weighing a total of eight grams. One officer testified

that a drug user would not possess that amount of drugs, and that a

drug user would not possess drugs without also having utensils with

which to consume them.

We reject the People’s contention that the evidence was

sufficient to make out a prima facie case that defendant possessed the

cocaine with the intent to sell it. Although “defendant’s possession

of a ‘substantial’ quantity of drugs can be cited as circumstantial
-2- 1207 

KA 15-00614 

proof of an intent to sell . . . , it cannot be said as a matter of

law that the quantity of uncut and unpackaged drugs possessed in this

case permitted an inference that defendant intended to sell them. 

More than mere possession of a modest quantity of drugs, not packaged

for sale and unaccompanied by any other saleslike conduct, must be

present for such an inference to arise” (People v Sanchez, 86 NY2d 27,

35; cf. People v Smith, 213 AD2d 1073, 1074). We note that the

“modest quantity of drugs” in Sanchez was 31⁄2 ounces of cocaine, far

more than the drugs possessed by this defendant, which amounted to

less than a of an ounce. Consequently, the court properly concluded

that the evidence was insufficient to establish that defendant

possessed a controlled substance with intent to sell it (see generally

People v Smith [Nicole], 74 AD3d 1249, 1250; People v Lamont, 227 AD2d

873, 875).

Entered: November 13, 2015 Frances E. Cafarell

Clerk of the Court