Opinion
May 29, 1990
Appeal from the Supreme Court, Queens County (Browne, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction for criminal sale of a controlled substance in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
We agree with the defendant's contention that the evidence adduced at trial was legally insufficient to sustain his conviction of criminal sale of a controlled substance in the third degree, inasmuch as chemical analysis revealed that the vials he sold to an undercover officer did not contain a controlled substance, an essential element of that offense (Penal Law § 220.39; see, People v. Kenny, 30 N.Y.2d 154; People v Gonzales, 66 A.D.2d 828; People v. Rosenthal, 91 Misc.2d 750). We find unpersuasive the People's argument that, under an offer to sell theory (Penal Law § 220.00), they need not prove the narcotic nature of the substance offered or transferred. Where, as here, it has been conclusively shown that the substance was not a controlled substance, the People have failed to prove their case (see, People v. Trent, 71 A.D.2d 866; People v. Hawkins, 69 A.D.2d 823). Accordingly, the conviction on that count must be reversed.
We have examined the remaining contentions advanced by the defendant and find them to be without merit. Mangano, P.J., Brown, Sullivan and Balletta, JJ., concur.