In conjunction with this motion, the defendant brought another motion to have the Court inspect the grand jury minutes, and to dismiss the indictment upon the ground that the evidence before the grand jury was not legally sufficient to support the criminal offense charged.
After granting the motion to inspect, the Court examined the minutes which revealed that the only exhibit received in evidence was a tape recorded conversation between the defendant and another person in which the defendant offered to sell him a gram of cocaine for fifty-five dollars.
Upon this exhibit plus the testimony of the other person that he followed the defendant’s instructions to his apartment, that he paid the sum asked, and received the cocaine this Court denied the motion to dismiss.
While the people do not admit in a candid manner that there is no cocaine to be examined, neither do they affirmatively state that the drug involved in this case is either in their possession or of any other law enforcement agency. However, since the people do admit that they have no scientific reports, one may surmise that the reason is because they have no cocaine to examine.
Accordingly, that portion of the motion to scientifically test the alleged cocaine to determine its exact chemistry is denied at this time, without prejudice to the defendant at the trial to apply to conduct his scientific examination after the alleged cocaine has been received into evidence. The Court is mindful of the possible delay at the trial this will entail, however, such delays from time to time in the interests of justice are necessary and provide no prejudice to the defendant or the people.
Our legislature has defined a number of ways in which a person may ‘sell’ such a drug. He may sell it as that word is used in everyday language for money or other reward, he may ‘exchange’ it with another for other property, he may even ‘give’ it away or ‘dispose’ of it in some manner to another, or he may ‘ offer to do the same.’
The Court does not believe in a case where a defendant is charged with offering to sell a dangerous drug that the arresting officers must seize and appropriate the actual drug substance which is the subject matter of the transaction. To hold otherwise would emasculate any meaning for the statutory words ‘to offer’, which would become nugatory and meaningless since there would be no use for their being in the statute at all.
A reading of P.L. § 220.00, subd. 1, reveals a comma separating the concept of selling, exchanging, giving or disposing from the concept of offering to do the same, and I believe this separation was a deliberate act of the legislature to differentiate between the actual doing of an act which is prohibited, and an offer to do such an act which if carried out would result in a consummation of an illegal act.
This defendant is not charged with a culminated or consummated drug possession transaction, or being in actual possession of a narcotic drug, but rather with offering to sell cocaine. In such an instance, the legislature has seen fit to declare such an act to be a crime, and when the proof indicates a valid offer to sell, and subsequent acts in furtherance of an implementation of the offer then the proof is sufficient.
In this case, the proof shows a valid offer to sell by the defendant, the buyer meeting with him, the passage of money and a substance of personal property between them. As this Court held upon the motion to inspect and dismiss, this proof before the grand jury was legally sufficient to sustain the indictment, even though no drug substance was ever introduced into evidence.