Opinion
2009NY046200.
October 22, 2009.
DECISION AND ORDER
The following papers were considered in deciding the defendant's omnibus motion:
Papers Numbered
Notice of omnibus motion and affirmation.................................... 1, 2 People's affirmation in opposition and voluntary disclosure form............ 3, 4The defendant is charged with Criminal Sale of Marihuana in the Fourth Degree (P.L. § 221.40) and Unlawful Possession of Marihuana (P.L. § 221.05).
In an omnibus motion, the defendant seeks: (1) dismissal of the charges on the grounds of facial insufficiency; (2) suppression of physical evidence obtained from defendant in contravention of his rights; (3) suppression of all statements allegedly obtained from defendant; (4) suppression of any alleged identification of defendant; and (5) preclusion of the prosecution's use of defendant's prior or subsequent criminal history, or uncharged criminal, vicious, or immoral conduct.
The defendant also seeks discovery, submits a Demand to Produce, and requests a Bill of Particulars and reservation of rights to make additional applications based on the People's production and subsequent case development. The People respond to the defendant's motion and applications, provide their Voluntary Disclosure Form, and request discovery from the defendant.
The motions are decided as follows.
FACIAL INSUFFICIENCY
As stated above, the defendant has moved to dismiss the accusatory instrument on facial insufficiency grounds for its failure to allege a prima facie case as to the offenses charged.
The factual part of the information in this case, which is signed by a detective of the Narcotics Boro Manhattan North of the New York City Police Department, states as follows:
Deponent states that deponent is informed by Detective Larry Dunn . . . that informant Dunn observed the defendant standing directly next to separately charged defendant (Saule Bernabe . . .), looking up and down the street and engaging in conversation with separately charged defendant Bernabe as separately charged defendant Bernabe handed a small object to separately charged defendant Victor Lantigua (. . .) in exchange for which separately charged defendant Lantigua handed separately charged defendant Bernabe a sum of U.S. Currency.
Deponent further states that deponent is informed by Detective Jesus Roldan . . . that informant Roldan recovered one (1) clear bag containing marijuana from inside the defendant's underwear.
Deponent is further informed by informant that the above-described substance is in fact what it is alleged to be based upon information and belief, the source of which is as follows: his professional training as a police officer in the identification of drugs, his prior experience as a police officer in drug arrests, the odor emanating from the substance, observation of the packaging which is characteristic of this type of drug and a field test of the substance which confirmed that the substance is in fact what it is alleged to be.
Deponent further states that deponent is informed by Detective Alan Nurse . . . that informant Nurse recovered two (2) clear bags containing marijuana from inside of a cigarette box inside of separately charged defendant's (Victor Lantigua. . .) pants pocket.
Deponent is further informed by informant that the above-described substance is in fact what it is alleged to be based upon information and belief, the source of which is as follows: his professional training as a police officer in the identification of drugs, his prior experience as a police officer in drug arrests, the odor emanating from the substance, observation of the packaging which is characteristic of this type of drug and a field test of the substance which confirmed that the substance is in fact what it is alleged to be.
Supporting depositions signed by Detectives Roldan, Dunn, and Nurse were filed by the People in this case.
In order for an accusatory instrument to be sufficient on its face, it must allege "facts of an evidentiary character supporting or tending to support the charges" (C.P.L. § 100.15(3)), provide "reasonable cause to believe that the defendant committed the offense charged" (C.P.L. § 100.40(1)(b)), and contain non-hearsay allegations which "establish, if true, every element of the offense charged and defendant's commission thereof" (C.P.L. § 100.40(1)(c); see also People v. Alejandro, 70 N.Y.2d 133). "`Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." (C.P.L. § 70.10(2).) The failure of an accusatory instrument to allege an element of the charged offense is a non-waivable jurisdictional defect. ( See People v. Kalin, 12 N.Y.3d 225, 229; People v. Jones, 9 N.Y.3d 259, 262 [2007].)
In reviewing allegations in an accusatory instrument for facial sufficiency, the Court should give such allegations "a fair and not overly restrictive or technical reading," so long as they provide the accused with notice sufficient to prepare a defense and "are adequately detailed to prevent a defendant from being tried twice for the same offense[.]" ( People v. Casey, 95 N.Y.2d 354, 360.)
Criminal Sale of Marihuana in the Fourth Degree
A person is guilty of Criminal Sale of Marihuana in the Fourth Degree when he or she "knowingly and unlawfully sells marihuana. . . ." (P.L. § 221.40.) In this context, "`[s]ell' means to sell, exchange, give or dispose of to another, or to offer or agree to do the same." (P.L. § 220.00(1).)
As the instant accusatory instrument does not include facts from which it might reasonably be inferred that the defendant acted as principal in any alleged sale of marijuana, the Court must consider whether it can reasonably be inferred from the facts in the complaint that the defendant's alleged conduct comprises sale in the fourth degree under a theory of accomplice liability or "acting in concert." ( See People v. Kaplan, 76 N.Y.2d 140; see also People v. Bello, 92 N.Y.2d 523, 526.) A person may be liable for the criminal conduct of another 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." (P.L. § 20.00.) "Accomplice liability requires, at a minimum, awareness of the proscribed conduct and some overt act in furtherance of it." ( People v. Hibbert, 282 A.D.2d 365, 366 [1st Dept. 2001]; see also People v. Hiett, 2001 N.Y. Slip Op. 40451(U) [Sup. Ct., N.Y. Co. 2001].) Therefore, in the context of this case, the Court considers two questions: 1) does the accusatory instrument allege actions by the defendant from which it can reasonably be inferred that he had the requisite mental state, in other words, was he aware of the criminal sale of marijuana?; and 2) does the accusatory instrument allege conduct that constitutes soliciting, requesting, commanding, importuning, or intentionally aiding separately charged defendant Bernabe in furtherance of said sale? ( See Kaplan, 76 N.Y.2d at 140, 147; see also Bello, 92 N.Y.2d at 526.)
Determining whether the allegations in an accusatory instrument are sufficient to comprise a charge of sale by way of accomplice liability is a fact-specific inquiry; it requires consideration of the defendant's conduct within the totality of the circumstances of the alleged drug sale, including the sequence and timing of events, the location of the alleged participants, and their conduct before and after the sale at issue. ( See Bello, 92 N.Y.2d at 526.) Mere presence, even with awareness of the crime occurring, is insufficient to establish accomplice liability ( see People v. Yarrell, 75 N.Y.2d 828, 829; see also People v. Tucker, 72 N.Y.2d 849, 850; People v. Simon, 2 Misc. 3d 1002 (A) [Crim. Ct., N.Y. Co. 2003]), as is presence for the mere purpose of personal purchase of drugs ( see People v. Smith, 184 A.D.2d 310 [1st Dept. 1992], lv. denied, 81 N.Y.2d 847). Where, however, the allegations set forth a coordinated effort by two or more individuals "acting in concert," all individuals may be charged with the sale, as their conduct may be found to be "indicative of a shared intent to sell drugs within the meaning of Penal Law § 20.00." ( People v. Hatchett, 196 Misc. 2d 892, 895 [Crim. Ct., N.Y. Co. 2003]; see People v. Witherspoon, 156 A.D.2d 306 [1st Dept. 1989], aff'd sub. nom People v. Carter, 77 N.Y.2d 95 [1990], cert. denied, 499 U.S. 967 (codefendant handed buyers pink envelopes in exchange for money which was in turn passed to defendant); see also People v. Henderson, 22 A.D.3d 311 [1st Dept. 2005], lv. denied, 6 N.Y.3d 813 (defendant passed an unidentified object to a second man, and that object was the packet of drugs that the second man immediately sold to an undercover officer).) Proximity to, coupled with open discussion of, the drug sale with alleged accomplices, particularly a principal, may allow for a logical inference that a defendant and others were acting as a team. ( Bello, 92 N.Y.2d at 527; but see People v. Garcia, 2/5/2001 N.Y. L.J. 26, (col. 5) [Crim. Ct., N.Y. Co. 2001] (allegation that defendant stood near codefendants while they sold marijuana does no give rise to an inference that he solicited or intentionally aided the others in the sale).)
The defendant challenges the sufficiency of the accusatory instrument's allegations as to both elements necessary for a charge of sale under an accomplice theory of liability. He argues that the allegations fail to establish his knowledge of the criminal sale and that his alleged conduct does not establish intentional aid. The People do not specifically address defendant's arguments but argue that the allegations in the accusatory instrument are sufficient to establish the elements of P.L. § 221.40. The Court finds that the totality of the facts and circumstances alleged, even when viewed in the light most favorable to the People, lead to the conclusion that the accusatory instrument is facially insufficient. While the first element of accessory liability for the sale-knowledge that marijuana was being sold-is minimally, but sufficiently, alleged, the People have failed to provide factual allegations from which the Court could reasonably conclude that the defendant intentionally aided separately charged defendant Bernabe in consummating the alleged sale.
1. Knowledge that Object of Sale was Marijuana
The Court finds that the accusatory instrument sufficiently alleges facts from which it can reasonably be inferred that the defendant knew that Bernabe was engaged in a sale of marijuana to Lantigua. While more specific facts as to the exchange between the defendant, Bernabe, and Lantigua would better support this conclusion, given the informant's observations, including allegations that the defendant was "directly next to" and engaged in conversation with Bernabe during the course of the observed exchange between Bernabe and Lantigua, the defendant's possession of marijuana at the time of his arrest and search, and Lantigua's possession of marijuana at the time of his arrest and search, it can reasonably be inferred that the defendant knew that Bernabe was selling Lantigua marijuana. ( See People v. Cesar, 14 Misc. 3d 1236 (A) [Crim. Ct., N.Y. Co. 2007] (accusatory instrument about observation sale need not specifically allege that the small object was marijuana where that may be the reasonable inference from subsequent events); People v. Grassi, 92 N.Y.2d 695, 699, rearg. denied, 94 N.Y.2d 900 (legally sufficient proof of criminal culpability may be based on circumstantial evidence).) Thus, as to the knowledge of the marijuana sale element, and viewing the allegations in the light most favorable to them, the People have met the minimal pleading burden required at this stage.
2. Intentionally Aiding Another in Furtherance of Sale of Marijuana
"The key to [the "aiding another"] analysis is whether a defendant intentionally and directly assisted in achieving the ultimate goal of the enterprise-the illegal sale of a narcotic drug." ( Bello, 92 N.Y.2d at 526.) As discussed above, this analysis contemplates the totality of the alleged events and the defendant's conduct.
Aid must be rendered intentionally and comprise more than incidental assistance. ( See Hatchett, 196 Misc. 2d 892, 896 (allegation that defendant held door open for buyer who, once inside, exchanged a small object for currency with an alleged codefendant is insufficient for finding that defendant was acting in concert to sell drugs).) It may be evinced by conduct including: acting as "steerer" ( see, e.g., People v. Sylvester, 2002 N.Y. Slip Op. 50431(U) [Crim. Ct., N.Y. Co. 2002]; People v. Marchena, 270 A.D.2d 88 [1st Dept. 2000], lv. denied,
94 N.Y.2d 950), or "screener" to another who physically provides the drugs to a buyer ( see Bello, 92 N.Y.2d at 527 (defendant "assisted in an essential portion of the negotiation by screening the potential purchaser for identity and interest," and thus is culpable as an accomplice to criminal sale of a controlled substance); see also People v. Patnelli, 276 A.D.2d 256 [1st Dept. 2000], lv. denied, 96 N.Y.2d 762); or benefitting from the sale ( see Garcia, 2/5/2001 N.Y. L.J. 26, (col. 5)), including by receiving buy money ( People v. Williams, 172 A.D.2d 448 [1st Dept. 1991], aff'd, 79 N.Y.2d 803).
Allegations of defendant's conduct as the lookout may lead to a finding of liability as to a drug sale. ( People v. Rosa, 7 Misc. 3d 1011 (A) [Crim. Ct., N.Y. Co. 2005]; People v. Fuentes, 246 A.D.2d 474 [1st Dept. 1998], lv. denied, 91 N.Y.2d 941; People v. Lopez, 200 A.D.2d 525 [1st Dept. 1994], lv. denied, 83 N.Y.2d 1005 (defendant "intentionally aided her codefendant by, at least, acting as a lookout during the sale").) Generally, however, in order to support a reasonable inference of intent to aid in the sale, facts describing other conduct and circumstances are needed to take allegations of "looking around" from an innocuous or inconclusive act to actual aiding as a lookout. ( See, e.g., People v. Cruz, 204 A.D.2d 212 [1st Dept. 1994], lv. denied, 83 N.Y.2d 1003 (defendant was directed and agreed to act as lookout, and the exchange of heroin occurred when defendant signaled that there were no police in the vicinity); Williams, 172 A.D.2d 448 (seller passed defendant, who acted as lookout, monetary proceeds of drug sale); People v. Armstrong, 160 A.D.2d 206 [1st Dept. 1990] (defendant's conduct in acting as guard, searching undercover officer, and then continuing to act as lookout were sufficient for drug sale charge as accomplice); People v. Fernandez, 193 A.D.2d 406, 406-07 [1st Dept. 1993], lv. denied, 81 N.Y.2d 1072 ("Defendant's unprompted communication to the seller of his approval of the buyer, and his role as a `lookout' at the request of the seller, combined with his observed close interaction with the seller before, during and after the sale, creates a reasonable inference that defendant was acting intentionally to aid the seller in safely consummating the sale."); People v. Eduardo, 44 A.D.3d 371 [1st Dept. 2007], aff'd sub. nom People v. Hawkins, 11 N.Y.3d 484 (evidence sufficient for conviction of sale charge based on timing, defendant's looking around for purpose of detecting law enforcement, conversation with seller, and departure from scene with seller subsequent to cocaine sale; totality of circumstances indicated defendants' shared intent to sell drugs).)
Here, the allegations are too limited for the Court to reasonably conclude that the defendant was acting with an intent to aid Bernabe in the sale of marijuana by serving as a lookout. While the defendant and Bernabe were allegedly engaging in conversation during the course of the sale to Lantigua, there are no allegations that the defendant addressed or spoke to Lantigua ( see Bello, 92 N.Y.2d at 526-27), that the defendant signaled Bernabe as to the lack of visible law enforcement, or that the defendant handled the drugs sold or any money received from Lantigua. Moreover, the single instance of sale addressed in the accusatory instrument does not include allegations that the defendant and Bernabe waited together for Lantigua's approach or left together after the sale was completed. The mere allegation that the defendant looked up and down the street, given the totality of the circumstances, is not of such weight and persuasiveness to lead to a conclusion that it is reasonably likely that he was intentionally aiding Bernabe's successful completion of the sale. ( See Rosa, 7 Misc. 3d 1011 (A) ("The singular act of looking north, or in any other direction, while standing on a public street, is far too innocuous to be considered `calculated or direct behavior that purposefully affected or furthered the sale'" (quoting Bello, supra)); see also People v. Palmer, 2/25/1993 N.Y. L.J. 24, (col. 5) [Crim. Ct., N.Y. Co. 1993] (accusatory instrument alleging that individual was observed standing outside particular premises and looking up and down the street on three separate occasions where marijuana sales were taking place inside, as well as entering and exiting said premises on occasion, is insufficient to sustain charge of sale as accomplice).)
The Court agrees with the defendant that these circumstances-standing next to and engaging in conversation with Bernabe during the course of a sale of marijuana, looking up and down the street, and later being found in possession of a small quantity of marijuana do not reasonably lead to the conclusion that the defendant intended to assist Bernabe in the sale of marijuana. The accusatory instrument falls short of alleging this essential element, even viewed in the light most favorable to the People. Therefore, defendant's motion to dismiss the charge of Criminal Sale of Marihuana in the fourth degree is granted.
Unlawful Possession of Marihuana
A person is guilty of Unlawful Possession of Marihuana when he or she "knowingly and unlawfully possesses marijuana." (P.L. § 221.05.) To the extent that the defendant moves to dismiss this charge on facial insufficiency grounds, defendant's motion is denied. The accusatory instrument alleges that a clear bag of marijuana was found on defendant's person, in his underwear, when searched. Additionally, the information includes the basis for the informant's determination that the bag contained marijuana-his training and experience-and the People supplied a field test of the contents of the bag indicating a positive result for marijuana. This charge is a violation and not a crime and there is no requirement that the possession was "open to public view." ( See People v. McLaughlin, 2001 N.Y. Slip Op. 40484(U) [App. Term, 1st Dept. 2001], lv. denied, 97 N.Y.2d 758.) Thus, the accusatory instrument sufficiently alleges the elements of this charge.
SUPPRESSION OF PHYSICAL EVIDENCE
Defendant's motion to suppress physical evidence is granted to the extent of directing that a Mapp/Dunaway hearing be conducted prior to trial.
SUPPRESSION OF DEFENDANT'S STATEMENTS
Defendant's motion to suppress his statements to law enforcement officials is granted to the extent of directing that a Huntley/Dunaway hearing be conducted prior to trial.
SUPPRESSION OF IDENTIFICATION EVIDENCE
Defendant's motion to suppress identification testimony is granted to the extent of directing that a Wade/Dunaway hearing be conducted prior to trial.
PRECLUSION OF EVIDENCE OF PRIOR CONVICTIONS AND BAD ACTS
Defendant's motion to preclude the introduction at trial of evidence of his prior convictions or bad acts pursuant to People v. Sandoval is reserved for the trial court.
DISCOVERY AND BILL OF PARTICULARS
Defendant's motion for pretrial discovery and a Bill of Particulars is granted to the extent provided by the People in their Voluntary Disclosure Form. The People are reminded of their continuing Brady v. Maryland, People v. Rosario, and related responsibilities.
CONCLUSION
For the reasons discussed above, the defendant's motion to dismiss, on grounds of facial insufficiency, is granted as to the charge of Criminal Sale of Marihuana in the Fourth Degree (P.L. § 221.40) and denied as to the charge of Unlawful Possession of Marihuana (P.L. § 221.05). A Mapp/Huntley/Wade/Dunaway hearing is granted. The Sandoval issue is reserved for the trial court.
This constitutes the Decision and Order of the Court.