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A New York appellate court has thrown out the conviction of a man sentenced to one to three years in prison on drug charges, after finding that he was flirting with an undercover policewoman rather than conspiring to sell her crack. The unanimous, unsigned opinion from the Appellate Division, 1st Department, overturns a jury trial conviction in February 2000 against William Tucker of Manhattan. Tucker was convicted of criminal sale of a controlled substance after he led an undercover officer to drug dealers in his neighborhood. On the day of his arrest, Tucker was approached by the undercover officer at the corner of 129th Street and Fifth Avenue, near his residence. The officer asked Tucker if anybody was “working,” to which Tucker replied affirmatively. He led the officer up the block toward Lenox Avenue and suggested that she get together with him after making her purchase. When the two arrived at the corner Tucker did the talking, asking a man if any dealers were around. A female dealer came over and asked the officer what she wanted. The three walked another block, where the officer eventually purchased two vials of crack from another woman. Tucker did not handle the drugs or the money involved in the purchase. Throughout the buy, he persistently tried to convince the officer to meet him afterwards. Tucker only gave up after he and the officer ran into another undercover officer, who pretended to be the female officer’s boyfriend. The female officer had earlier tried to discourage Tucker’s advances by telling him she was buying the drugs for her boyfriend, according to the opinion. Tucker was arrested shortly after the officers left his company. According to the court’s opinion, Tucker was on his way home from work when the officer approached him. He testified that when he met the officer, whom he had never seen before, he thought, “She looks good, how can I turn this to my advantage?” He said that he asked the officer where they could go after her purchase, and she replied that her cousin lived in the neighborhood. At trial, the jury found that Tucker conspired with three others to sell drugs to the officer. The undercover officer testified that she believed Tucker might have been both flirting with her and trying to sell her drugs. The 1st Department rejected that possibility, finding that Tucker had no direct interest in the drugs. “[Tucker] was not associated with the drug sellers; he only knew where they might be found and he hoped to parlay that knowledge into a sexual encounter with the undercover,” the court wrote. Tucker has no criminal record, according to the opinion. The court reasoned that he knew where the officer could buy drugs because the information would be common knowledge for long-time residents: in Tucker’s case, 40 years. At trial, the undercover officer testified that it was possible to buy drugs at nearly any corner in the neighborhood where Tucker was arrested. “The proof that defendant understood that the undercover [officer] was interested in buying drugs, that he wanted to help her, and that he may have recognized a neighborhood drug seller does not warrant the inference that he was a ‘steerer’ for the drug sellers or participated in the sale in a commercial sense,” the court wrote. Justices Joseph P. Sullivan, Angela M. Mazzarelli, Betty Weinberg Ellerin, Richard W. Wallach and Alfred D. Lerner ruled on the case. Andrea G. Hirsch, a private-practice attorney and former attorney at the Legal Aid Society, represented Tucker. Ellen Sue Handman represented the prosecution.

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