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Court Discusses Criminal Solicitation


The accused parties filed motions to dismiss the charges against them of criminal solicitation on the ground that there exists some jurisdictional or legal impediment to their conviction and on the ground that the accusatory instruments are defective. The Court grants the motions to dismiss the charges of criminal solicitation.

A New York Criminal Lawyer said all of the accused were arrested on various streets in the City of Rochester allegedly attempting to buy small amounts of marijuana. The place has become known as open-air drug markets where marijuana, cocaine and heroin can be purchased on the streets. In some areas cocaine possession and heroin possession with intent to sell are rampant. Those who live and work in those areas have become frustrated at the misuse of their neighborhoods for drug activity, that activity bringing with it increased public safety concerns for themselves and their families. The potential for violence in connection with the open-air drug trafficking was illustrated and underscored with the murder of a resident of the surrounding suburb of Penfield, New York. He was shot to death while reportedly attempting to purchase marijuana in one of the open-air drug markets.

In response to the public safety concerns of the neighborhoods, and in direct response to the murder, the City of Rochester Police Department began to station undercover police officers on the various streets with reputations for being open-air drug markets (drug possession). The officers then arrested individuals who approached them attempting to buy marijuana and other drugs. In the cases before the Court, all of the accused were charged with criminal solicitation in the fifth degree, a violation punishable by a maximum of 15 days in jail. The information alleges either that the accused were soliciting the officers to sell them marijuana, or were attempting to buy a marijuana-type substance or fake marijuana.

The activities of the Rochester Police in the so-called sting operations were highly publicized in the media and well received by the citizens of the city, particularly those in the neighborhoods most directly affected who had felt frustrated at the seemingly endless supply of individuals from throughout the rest of the city and suburbs who were venturing into their neighborhoods to buy drugs with no apparent consequences. A Brooklyn Criminal Lawyer said the operation seemed to relieve the shared frustration of neighbors with very real concerns and fears about the atmosphere and actuality of danger that the drug markets bring and that of the police in their efforts to respond to the very real public safety concerns of citizens in the neighborhoods adversely affected. The police were responding as well to public safety concerns for those traveling to the neighborhoods to feed their habits, the very individuals who cause the open-air markets to exist and thrive.

The Court applauds the interest of the neighbors and the police and their determination to eliminate the open-air drug markets. Unfortunately, the laws of the State of New York do not include any statute or combination of statutes that would allow for the prosecution of these accused for the conduct alleged. On the contrary, the exemption statute in the section of the Penal Law that governs prosecutions for criminal solicitation states specifically that under certain situations, a person is not guilty of criminal solicitation. For such reason, the accused party’s motions to dismiss the charges of criminal solicitation in the fifth degree must be granted in the cases where the information alleges the accused solicited the undercover police officers to sell them marijuana. The cases in which the information alleges the accused were attempting to buy a marijuana-type substance or fake marijuana was dismissed because the information is defective. The law state that a person is guilty of criminal solicitation in the fifth degree when with intent that another person engage in conduct constituting a drug crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

Criminal solicitation in the fifth degree is a violation. In order for a person to be found guilty of any degree of criminal solicitation, it is not necessary that the person solicited engage in any criminal law violation activity or even any preparation for any criminal activity. The gravamen of criminal solicitation is the request or other attempt by the accused to the person solicited to engage in criminal conduct.

The allegations are that the accused solicited the undercover officers to sell them marijuana the people have alleged the necessary elements, that the accused intended that the undercover officers sell them marijuana, and that they solicited the undercover officers to sell them marijuana.

The Court believes that a violation of criminal solicitation in the fifth degree is sufficiently pleaded in the cases. Unfortunately, the inquiry does not end there. The criminal solicitation section of the Penal Law contains an exemption provision that must be considered in determining whether or not an accused may be found guilty of any degree of criminal solicitation. That exemption is the result of a determination by the State Legislature that not all requests of another to engage in conduct constituting a drug crime would be punished as criminal solicitation. The exemption section states that a person is not guilty of criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime solicited. When under such circumstances the solicitation constitutes an offense other than criminal solicitation which is related to but separate from the crime solicited, the actor is guilty of such related and separate offense only and not of criminal solicitation.

The exemption statute mandates that a person IS NOT GUILTY when the conduct of that accused in the solicitation is necessarily incidental to the commission of the crime solicited. Therefore, the question is whether the requests by the accused to the undercover police officers to sell them marijuana are necessarily incidental to the sale of marijuana, since it is the sale of marijuana that is alleged to be the criminal conduct that the accused are trying to get another person to engage in.

The accused could have been found guilty of the related charge of attempted marijuana possession, though not criminal solicitation, if the amount solicited had been in excess of twenty-five grams, the amount necessary before marijuana possession can establish a criminal charge by volume alone. They were not charged with attempted marijuana possession, presumably because the amounts solicited were too small. The accused could not have been charged with the attempt to possess amounts smaller than twenty-five grams because such crack possessions would, by law, constitute only violations. Under New York law, an attempt to commit a violation is neither an offense nor a crime.

By definition, therefore, a sale involves two parties, the one actually doing the selling or exchanging and another who receives or is intended to receive the marijuana. In these cases a sale of marijuana, by virtue of Penal Law, requires the existence of another person–the person to whom the transfer is made. In these cases the required another person are the accused and their conduct in soliciting the sale is, the Court finds, necessarily incidental to the sales of marijuana they were alleged to intend the police officers to commit. The exemption statute of the Penal Law therefore prohibits, as a matter of law, any finding of guilt in the cases. They are dismissed, pursuant to Criminal Procedure Law and Penal Law.

It is every person’s duty to make our world a safe place for the children. In a community where drug sales tend be common activities, we jeopardize not only the children’s safety but the whole community as well. When you want to pursue a drug related action, call the New York Drug Crime Lawyers of Stephen Bilkis and Associates. Whether you have been charged with sex crimes, drug possession or theft, the most competent team of NY Criminal Law Attorneys can also provide you with your much needed guidance with regard to your crime related legal actions.

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