Opinion
2007NY083511.
Decided on June 18, 2008.
Defendant was represented by Lawrence M. Fisher, Esq., New York, NY.
The People were represented by ADA Ryan Malkin, Esq., NY County DA's Office, New York, NY.
The defendant, Donte Schnell, together with co-defendant Garfield Hinds, is charged with a single count of Criminal Sale of Marihuana in the Fourth Degree (PL 221.40). The defendant has moved in an omnibus motion for dismissal for facial insufficiency; preclusion of statements and identification evidence, and disclosure of prior bad acts. The defendant's motion is decided as follows.
FACIAL SUFFICIENCY
In order to be facially sufficient, an information must substantially conform to the formal requirements of CPL 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL 100.15 and 100.40; see People v Dumas, 68 NY2d 729; see also People v Alejandro, 70 NY2d 133).
The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone ( People v Alejandro, 70 NY2d at 138, quoting 1968 Report of Temp Comm on Rev of Penal Law and Crim Code, Intro Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt ( People v Henderson, 92 NY2d 677, 680; People v Hyde, 302 AD2d 101, [1st Dept 2003]). Thus, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged" ( People v Sylla, 7 Misc 3d 8, 10 [2d Dept 2005]). Finally, 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" ( People v Casey, 95 NY2d 354, 360; see also People v Konieczny , 2 NY3d 569; People v Jacoby, 304 NY 33, 38-40; People v Knapp, 152 Misc 368, 370, affd 242 App Div 811; People v Allen, 92 NY2d 378, 385; People v Miles, 64 NY2d 731, 732-733; People v Shea, 68 Misc 2d 271, 272; People v Scott, 2005 NY Slip Op 25179 [Crim Ct NY County [2005]). 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" ( People v Barona, 19 Misc 3d 1122A, 1 [Crim Ct, NY County 2008]).
The instant complaint charges that on November 3, 2007 at approximately 12:15 a.m., in front of 212 East 122nd Street in New York County the deponent police officer observed co-defendant Hinds hand a male minor one (1) clear bag containing marihuana in exchange for a sum of US currency. "Immediately after said minor walked away" from co-defendant Hinds, the officer observed the co-defendant make a cellular telephone call. "Several seconds later" defendant Schnell "walked up" to the co-defendant who then handed the defendant a sum of US currency.
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 the arrival of defendant Schnell, it is "insufficient to assume" either that defendant Schnell was the person whom the co-defendant called, or that the money handed to defendant Schnell 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 he contends the complaint must be dismissed for facial insufficiency.
Under PL 221.40, "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" (PL 220.00). The defendant is charged with criminal sale of marihuana in this case under the theory that he acted in concert with co-defendant Garfield Hinds.
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" (PL 20.00). Whether 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"' ( People v Duncan, 46 NY2d 74, 79-80). 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 (PL 20.05; People ex rel Guido v Calkins, 9 NY2d 77, 80-81).
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 ( People v Bello, 92 NY2d 523, 526). 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" ( Bello, at 526). 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" (Bello, at 526). 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 ( see People v Flocker, 223 AD2d 451 [1st Dept 1996]); People v Hilario, 219 AD2d 546 [1st Dept. 1995]); People v Fonseca, 208 AD2d 399 [1st Dept 1994]; People v Davis, 202 AD2d 325 [1st Dept 1994]). 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 (see People v Bello , 24 AD3d 236 [1st Dept. 2005]). While a defendant's lack of possession of the drugs or buy money will not negate his accessorial liability, ( see People v Robinson, 210 AD2d 169 [1st Dept 1994]; Hilario, at 546; Davis, at 325) "acts undertaken in relative innocence and without a conscious design to advance the principal's crime will not support a conviction for accomplice liability" ( People v Kaplan, 76 NY2d 140, 145). 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 ( People v Espino, 284 AD2d 254, 255 [1st Dept. 2001]; Bello, at 527). 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 ( see People v Hibbert, 282 AD2d 365, 365-366 [1st Dept. 2001]). "Accomplice liability requires, at a minimum, awareness of the proscribed conduct and some overt act in furtherance of such" ( Hibbert, at 366).
Here the 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. The deponent officer observed co-defendant Hinds hand a male minor a bag of marihuana in exchange for a sum of US currency. "Immediately after" the buyer walked away from the co-defendant, the co-defendant placed a cellular telephone call. "Several seconds later", defendant Schnell walked up to the co-defendant and the co-defendant handed a sum of US currency to him. Contrary to defendant's assertion, it is reasonable to conclude from these 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. 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. Moreover, that the defendant arrived seconds after the co-defendant called him demonstrates that although the defendant may not have been physically present during the sale, 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 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 ( see People v Brown, 97 NY2d 500, 504). 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 ( see Hibbert at 366). Therefore the defendant is criminally liable as an accomplice to the sale.
Because 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 ( see Casey at 354) it is facially sufficient. 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. Therefore, the defendant's motion to dismiss for facial insufficiency must be denied.
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.
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 pursuant to CPL 240.43. A Sandoval ruling is reserved to the trial court.
This constitutes the decision and order of the Court.