People v. Coston: Baking Soda as Drug “Diluent/Dilutant/Adulterant” Under Penal Law § 220.50(1) and Proof by Circumstances Evincing Intent

1. Introduction

People v. Coston arose from two separate no-knock search warrants executed about a year apart at locations where Hasaan A. Coston was alleged to be residing—first in the City of Binghamton (July 2021), then in the Village of Endicott (August 2022). Each search yielded narcotics and items typically associated with drug distribution (scales, baggies, cash, and baking soda).

After the two indictments were consolidated, defendant waived a jury and proceeded to a bench trial. County Court convicted him of multiple controlled substance possession counts (including intent-to-sell counts) and multiple counts of criminally using drug paraphernalia in the second degree (Penal Law § 220.50). On appeal, defendant primarily challenged (i) proof of possession and intent to sell and (ii) whether baking soda can support a § 220.50(1) conviction absent proof it was actually used to cut drugs. He also raised (iii) judicial bias based on the same judge issuing warrants/denying suppression and then presiding at trial, and (iv) sentence issues.

2. Summary of the Opinion

The Third Department affirmed all convictions, holding that:

• The legal-sufficiency claim was unpreserved, but the court reviewed proof of each element through the weight-of-the-evidence analysis.
• The evidence supported constructive possession and intent to sell for both searches, based on defendant’s control of the areas where drugs and distribution materials were found.
• Baking soda may qualify as a “diluent[], dilutant[] or adulterant[]” under Penal Law § 220.50(1); the statute’s list is nonexclusive, and actual use need not be proven—only “circumstances evincing an intent to use.”
• Convictions under Penal Law § 220.50(2) (packaging materials) and § 220.50(3) (scales) were supported by proximity to narcotics, packaging, and cash.
• The judicial-bias/recusal claim was unpreserved; no mandatory disqualification under Judiciary Law § 14 was shown.
• The sentence was not unduly harsh or severe, but the uniform sentence and commitment forms had to be corrected to reflect defendant’s status as a second felony drug offender (not a second felony offender).

3. Analysis

3.1 Precedents Cited

• People v Starnes and People v Gillespie: These cases supplied the preservation rule applied to defendant’s legal-sufficiency argument. Because the trial order of dismissal was not targeted to the specific appellate theories, sufficiency review was deemed unpreserved.
• People v Hodge and People v Barzee: These cases supported the court’s practice of assessing whether each element was proven beyond a reasonable doubt within weight-of-the-evidence review, even when sufficiency is unpreserved. They effectively function as a doctrinal “backstop,” ensuring the appellate court examines the full evidentiary record.
• People v Grovner: This Fourth Department authority provided the constructive-possession formulation used here: where no actual possession is shown, the People must prove “dominion or control” over contraband by demonstrating sufficient control over the area where it is found (or the person from whom it is seized). The Third Department used this principle to validate possession findings at both residences.
• People v Poulos, People v Colon, and People v McCollum: These Third Department cases anchored the inference of “intent to sell” from circumstantial indicators—packaging, scales, plastic bags, and cash, together with surrounding circumstances and admissions. The court relied on this line to sustain the Penal Law § 220.16(1) counts.
• People v Herrera (and the comparison to People v Shire): These cases framed the paraphernalia issue under Penal Law § 220.50(1). The court cited Herrera as supporting the proposition that baking soda, in context, can support a finding of qualifying “diluents/dilutants/adulterants” with the requisite intent. By contrasting with Shire, the opinion signals that contextual proof (proximity to drugs/scales and testimony about common use) matters; not every presence of an item will suffice.
• People v Casatelli: This case supported the unpreserved nature of the judicial-bias claim where the defendant neither sought recusal nor objected, and indeed elected a bench trial with knowledge of the judge’s prior warrant/suppression involvement.
• People v Thompson: This case supported the ministerial remedy: correcting sentencing paperwork to reflect “second felony drug offender” status. The opinion also used Thompson to emphasize that, for a predicate felony offender convicted of an Article 220 drug felony, designation as a second felony drug offender is required, and that determinate sentencing is consistent with that designation.

3.2 Legal Reasoning

(a) Constructive possession across two settings. For the July 2021 search, defendant was found alone in bed in a two-bedroom residence, with drugs and sales-related items distributed through the home and with evidence tying him to occupancy (mail and his admission). For the August 2022 search, the residence had multiple occupants/rooms, but the drugs were recovered from a locked bedroom where only defendant was present, alongside his identification, keys, cash, scales, and packaging materials; surveillance tied him to the location (his vehicle parked there most of the time). The court treated these as strong dominion-and-control facts under the Grovner constructive possession standard.

(b) Inferring intent to sell from objective indicators. The Third Department reiterated a familiar approach: intent to sell rarely requires direct evidence and may be inferred from the manner of packaging, the presence of scales and baggies, and substantial cash found near narcotics, reinforced here by defendant’s admission during the first search.

(c) The baking soda holding under Penal Law § 220.50(1). The opinion’s most pointed clarification is statutory: Penal Law § 220.50(1) lists specific substances but says “including but not limited to,” making the list illustrative rather than exhaustive. Thus, baking soda may qualify as a “diluent[], dilutant[] or adulterant[]” when supported by testimony that it is commonly used to cook crack cocaine.

The court then addressed the evidentiary gap defendant emphasized: the drugs were not tested for sodium bicarbonate and there was no direct proof the baking soda was actually used as a cutting agent. The court held that “actual use is not required” under § 220.50(1); the statute requires possession “under circumstances evincing an intent to use” (or knowledge another intends to use) the item for unlawful preparation/mixing. Here, intent could be inferred circumstantially from proximity: baking soda was located near scales, near suspected narcotics (including crack/cocaine base), and amidst packaging materials and cash.

(d) Packaging materials and scales under § 220.50(2) and (3). The court applied the same proximity-and-context logic to baggies (materials suitable for packaging individual quantities) and scales (used/designed for weighing). It also rejected an attempt to overturn one scale-based count based on the scale’s alleged brand (“CR brand”), treating brand as non-elemental surplus description rather than a required statutory fact.

(e) Recusal and preservation. The court treated the judicial-bias argument as forfeited because defendant neither moved for recusal nor objected and proceeded with a bench trial. It further noted the absence of any mandatory-disqualification ground under Judiciary Law § 14, reinforcing the distinction between (i) required recusal (statutory) and (ii) discretionary recusal (typically requiring a timely motion and record support).

(f) Sentencing paperwork correction. Even while affirming the sentence’s length, the court ordered correction of the commitment forms to reflect “second felony drug offender,” aligning the documentary record with the determinate sentencing actually imposed and with the required designation for an Article 220 predicate scenario.

3.3 Impact

1) Clarifying § 220.50(1) beyond enumerated substances. People v. Coston strengthens the People’s ability to prosecute § 220.50(1) paraphernalia counts where the “cutting” or “cooking” agent is not among the statute’s five named examples. By emphasizing “including but not limited to,” the decision reduces defense arguments that attempt to turn the list into an exclusivity requirement.

2) Lowering the practical need for chemical linkage (while keeping an intent requirement). The court’s “actual use not required” point matters operationally: the People may rely on contextual evidence (proximity, surrounding distribution tools, expert/police testimony about common use) without proving the substance was chemically used in the seized drugs. At the same time, the opinion signals the importance of context—its comparison to People v Shire suggests that mere presence of a common household item, without corroborating circumstances, may be insufficient.

3) Reinforcing constructive-possession proof in shared residences. The Endicott search analysis provides a roadmap for proving dominion and control in multi-occupant properties: locked room access, keys, identification, cash, and surveillance links can collectively support constructive possession.

4) Preservation discipline for recusal and sufficiency claims. The decision reiterates that appellate courts will often not entertain recusal and sufficiency theories absent targeted trial motions. Practitioners are reminded to (i) specify grounds in dismissal motions and (ii) move for recusal or at least create a record when alleging bias.

4. Complex Concepts Simplified

• Legal sufficiency vs. weight of the evidence: “Sufficiency” asks whether any rational factfinder could convict on the proof; it is tightly tied to preservation rules. “Weight” asks the appellate court to review the record in a neutral light and decide whether the factfinder’s verdict was justified, while still giving deference to credibility determinations.
• Constructive possession: You need not be caught holding drugs. If the People show you exercised dominion or control over the place where drugs are found (e.g., a locked room with your keys/ID and your belongings), the law may treat that as possession.
• “Intent to sell”: Courts infer intent from circumstances—distribution packaging, scales, large cash, multiple packets, and related paraphernalia—rather than requiring an observed sale.
• Penal Law § 220.50(1) “including but not limited to”: The statute lists examples of diluents/dilutants/adulterants, but the list is not exhaustive; other substances (like baking soda) can qualify if evidence shows they are adapted/used for drug preparation and the circumstances evince intent.
• “Circumstances evincing an intent to use”: The People can prove intent indirectly (location near drugs/scales, open box near packaging, testimony about typical use) without proving the item was actually used on the seized drugs.
• Second felony offender vs. second felony drug offender: These designations affect sentencing structure. Here, the determinate sentences aligned with second felony drug offender treatment, requiring correction of paperwork even though the prison terms were affirmed.

5. Conclusion

People v. Coston is most significant for its pragmatic, text-based reading of Penal Law § 220.50(1): the statute’s enumerated diluents are examples, not limits, and baking soda can support a paraphernalia conviction when surrounding facts show intent to use it in preparing narcotics—even without lab proof that it was actually used in the drugs seized. The decision also consolidates familiar New York doctrines on constructive possession, intent-to-sell inferences, preservation for appellate review (including recusal claims), and the need to align sentencing paperwork with the legally correct predicate-offender designation.