A New York Criminal Lawyer said that, defendant L. is charged with facilitating a felony with respect to a “buy and bust” operation, in that, as reflected in the indictment “the defendant L. believing it was probable that he was rendering aid to T.P., a person who intended to commit a drug possession crime, did engage in conduct which provided such person with the means or opportunity for the commission thereof and which in fact aided such person to commit a felony.”
With the respect to the events underlying the indictment, the grand jury minutes contain the following testimony by the undercover officer, which constitutes all of the evidence as to the defendant’s conduct on October 9, 2006:
“I approached J.B. [defendant L.] and asked him if anybody was out. J.B. stated to me that he was looking too. So then we went together to the front of 1930 Grand Concourse. At that point in time we met with T.P., and J.G. stated to us to go inside the building. So then we went inside the building. I went in the rear with J.B. and J.G.. We walked to the rear of the building to the first floor, up one flight of stairs. At that point in time J.G. stated to me, “How many do you want?” I stated to him, “Two.” He then handed me two glassines which contained alleged heroin which was ink-stamped, “Magic.” I then handed J.G. $20 prerecorded buy money. At that point in time, as we were leaving, J.B. stated to me that I had to like “hook him up.” He then took one glassine from my hand.”
A Long Island Criminal Lawyer said both defendant and the person identified as J.G. were subsequently apprehended by other officers, and identified by the undercover officer. The contents of the glassine envelope were field tested and determined to be heroin. J.G. was indicted for the sale of the heroin. As noted above, based on the foregoing testimony, the grand jury voted an indictment charging defendant Lampkin with one misdemeanor count of criminal facilitation in the fourth degree. By omnibus motion, defendant moves for a variety of relief.
The issue in this case is whether defendant was improperly indicted of the offense charged.
In determining the legal sufficiency of an indictment, the court’s inquiry is limited to assessing whether the facts, if proven, and the logical inferences flowing therefrom, supply proof of each and every element of the charged crimes. CPL § 70.10 (1) defines legally sufficient evidence as “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof.” In other words, legally sufficient evidence establishes a prima facie case, not proof beyond a reasonable doubt. The court must view the evidence in the light most favorable to the People, and determine whether that evidence, if presented at trial, otherwise unexplained and uncontradicted, and irrespective of innocent inferences arising from the evidence, would be sufficient to support a guilty verdict by a petit jury.
The evidence before the grand jury does not establish a prima facie case of the drug crime of criminal facilitation. Penal Law § 115.00 (1) provides, “A person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid: 1. to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony”. The elements of the crime have been summarized as follows: “There are three elements to the offense: (1) the actor must have had a belief that it was probable that he or she was rendering aid to a person intending to commit a crime; (2) he or she must have engaged in conduct which provided the means or opportunity for the commission of the crime; and (3) his or her conduct must have been such that it did, in fact, aid the other to commit a felony.”
Initially, the court observes that there is no evidence that the defendant lead or directed the undercover officer to the location where the drug sale was consummated. There is no evidence from which any inference can be drawn that the defendant even knew where he and the undercover officer were headed, nor that he touted the drugs that were to be purchased, took an active role in locating the seller, brokered the transaction or engaged in any other “salesmanship.” The testimony was merely that defendant accompanied the undercover officer as he searched for narcotics. Defendant’s conduct was thus not shown to be consistent with that of a “steerer” in a drug crime transaction, much less of a person who facilitates a sale by rendering aid to the seller.
In the instant case, defendant was not standing near or in proximity to the seller, so as to give rise to an inference that he aided in the sale. Instead, as noted above, the evidence was that the defendant, similar to the situation in Matter of Luis O., merely accompanied the officer to the location where the sale occurred. There is no evidence that the defendant spoke to J.G., signaled to him, or otherwise assisted him in the sale of the heroin. Defendant did not handle the money, transfer the drugs, or make any statement to assist in the transaction. The present facts simply do not establish that defendant facilitated the sale.
The foregoing discussion is based on the allegations in the indictment which indicate that the theory of the prosecution is that the defendant believed that it was probable that he was rendering aid to a person intending to commit a crime, i.e., J.G, the actual seller of the heroin.
In view of the absence of evidence that the defendant identified the seller as a person from whom drugs could be purchased, defendant did not provide the undercover officer with the means or opportunity for the commission of a felony. Lastly, the court notes that the defendant essentially helped himself to a “tip” consisting of some of the drugs by snatching them from the undercover officer’s hand. However, in view of the lack of evidence that defendant provided the means or opportunity for the sale, or otherwise participated in the sale, his mere receipt of a part of the heroin, standing alone, does not constitute evidence of facilitation. While the evidence may show that defendant acted out of an interest in acquiring drugs for himself, that intent, when he did not otherwise provide the means or opportunity for, or otherwise aid in the sale, does not subject him to criminal liability for facilitation.
In view of the foregoing, the Court held that, the indictment is dismissed with leave to represent. The remaining relief sought is denied as academic.
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