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Defendant’s Motion to Dismiss Denied


The Facts:

On 3 November 2007 at approximately 12:15 a.m., in front of 212 East 122nd Street in New York County, a police officer observed one of the defendants (herein co-defendant) hand to the minor defendant (herein defendant) one (1) clear bag containing marihuana in exchange for a sum of US currency. A New York DWI Lawyer said that immediately after the minor defendant walked away from the co-defendant, the officer observed the co-defendant make a cellular telephone call. Several seconds later, the minor defendant walked up to the co-defendant who then handed the defendant a sum of US currency.

Defendants were arrested and charged with a single count of Criminal Sale of Marihuana in the Fourth Degree, a drug crime.

Defendant is charged with criminal sale of marihuana under the theory that he acted in concert with his co-defendant.

Defendant has moved in an omnibus motion for dismissal on the ground of facial insufficiency; preclusion of statements and identification evidence; and disclosure of prior bad acts.

Defendant claims that the instant complaint is defective, vague and ambiguous. He argues that because of the gap in time between the alleged marihuana sale and cellular telephone call by the co-defendant and his arrival, it is insufficient to assume either that he was the person whom the co-defendant called, or that the money handed to him by the co-defendant was the proceeds of a marihuana sale.

Defendant also argues that the facts alleged are insufficient to demonstrate that he possessed the requisite intent to commit the crime.

Thus, defendant contends that the complaint against him must be dismissed for facial insufficiency.

The issue:

Were the defendant’s actions sufficient to justify a conviction?

The Court’s Ruling:

On the issue of Facial Sufficiency:

For an Information to be facially sufficient it must substantially conform to the formal requirements of CPL. The factual portion and any accompanying depositions must provide a reasonable cause to believe that the defendant committed the offense charged, as well as non-hearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant’s commission thereof.

A New York DWI Lawyer said the requirement of non-hearsay allegations has been described as a much more demanding standard than a showing of reasonable cause alone; however, it is a much lower threshold than the burden of proof beyond a reasonable doubt. Thus, the law does not require that the information contain the most precise words or phrases most clearly expressing the charge but only that the crime and the factual basis be sufficiently alleged. Where the factual allegations contained in an Information give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading. Ultimately, the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged.

Under the law, a person is guilty of criminal sale of marihuana in the fourth degree when he knowingly and unlawfully sells marihuana. To sell is defined as to sell, exchange, give or dispose of to another, or to offer or agree to do the same.

A person is criminally liable for conduct of another person constituting an offense if, when acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes or intentionally aids such person to engage in such conduct. The issue of whether or not the defendant is the actual perpetrator of the crime or an accomplice is irrelevant as there is no distinction between liability as a principal and criminal culpability as an accessory. Moreover, an accomplice may be criminally liable for the conduct of the principal even though the principal is not prosecuted or convicted of the offense.

Now, to establish that a defendant acted in concert in the context of a drug sale, the People must prove not only that the defendant shared the requisite mens rea for the underlying crime but that the defendant solicited, requested, commanded, importuned, or intentionally aided the principal in committing the crime. Integral to the inquiry is whether the defendant exhibited any calculated or direct behavior that purposefully affected or furthered the sale of the controlled substance. The key to the analysis is whether the defendant intentionally and directly assisted in achieving the goal of the enterprise; the illegal sale of a narcotic drug. Thus, a defendant who participates in and promotes a drug sale by acting as a steerer or lookout is criminally liable as an accessory to the sale. Similarly, a defendant’s supervisory position as a screener of prospective buyers in a street level drug operation will support a finding of accessorial liability. While a defendant’s lack of possession of the drugs or buy money will not negate his accessorial liability, the acts undertaken in relative innocence and without a conscious design to advance the principal’s crime will not support a conviction for accomplice liability.

Accordingly, a defendant who acts as a helpful bystander in providing general information as to where drugs may be purchased is not an accessory to a drug sale. Neither is a defendant who accepts pre-recorded buy money from a seller one half hour after the drug sale criminally liable as an accomplice. Accomplice liability requires, at a minimum, awareness of the proscribed conduct and some overt act in furtherance of such.

Here, defendant is accused of receiving the purported proceeds of a marihuana sale from the co-defendant seconds after the co-defendant engaged in the alleged sale. It is reasonable to conclude from the facts that the defendant was the person whom the co-defendant called on his cellular telephone and that the money handed to the defendant by the co-defendant was obtained from the alleged sale of marihuana; the fact that the co-defendant called the defendant immediately after the sale and gave him the money earned from it further supports the inference that the co-defendant reported the sale to the defendant, and turned over the proceeds to him according to some agreement between them; when the defendant arrived seconds after the co-defendant called him, it demonstrates that although the defendant may not have been physically present during the sale, but he was close enough to know about it. Although it is not alleged that the defendant participated in the actual sale either as a steerer who directs buyers to particular sellers, or as a lookout who watches for police, or as a stash man who safeguards and handles the drugs, there is a reasonable cause to believe that the defendant was either a money man responsible for protecting the proceeds of the sale or a manager responsible for overseeing the street level operation.

The facts alleged circumstantially establish that the defendant was aware of the marihuana sale and committed an overt act in furtherance of it by collecting the proceeds of the sale from the co-defendant seconds after the sale was conducted. Therefore, defendant is criminally liable as an accomplice to the sale.

Since the instant complaint gives the defendant sufficient notice to prepare a defense and is adequately detailed to prevent the defendant from being tried twice for the same offense, it is facially sufficient. A Nassau County DWI Lawyer said while the People must still meet their burden of proof beyond a reasonable doubt at trial, their much lower burden at the pleading stage has been met.

Defendant’s motion to dismiss for facial insufficiency must be denied.

On the issue of Preclusion of Statements and Identification:

The defendant’s motion to preclude evidence of statements or identification testimony for which the People have not given proper notice is denied as premature since the People have not yet sought to introduce any such evidence.

On the issue of disclosure of Prior Bad Acts:

The People are directed to disclose all alleged uncharged vicious, immoral, or criminal acts which they intend to use at trial to impeach the defendant prior to commencement of jury selection as required in accordance with law.

If faced with criminal charges such as the above, contact Stephen Bilkis & Associates for a free consultation. Confer with our New York Criminal Lawyers. You may also want to discuss your case with our New York Drug Crime Lawyers for a more specialized attorney. Our legal experts are the best there is.

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