Opinion
June 8, 2001.
(Appeal from Judgment of Supreme Court, Monroe County, Mark, J. — Criminal Possession Controlled Substance, 1st Degree.)
PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, KEHOE AND BURNS, JJ.
Judgment unanimously reversed on the law, motion granted and counts one and two of indictment No. 927/96 dismissed.
Memorandum:
We agree with defendant that the evidence adduced at trial is legally insufficient to establish his guilt of criminal possession of a controlled substance in the first degree (Penal Law § 220.21) and criminal possession of a controlled substance in the third degree (Penal Law § 220.16). Viewed in the light most favorable to the People ( see, People v. Contes, 60 N.Y.2d 620, 621), the evidence establishes that defendant, who was located in Rochester, telephoned his supplier in New York City and placed an order for a quantity of cocaine, which was seized before delivery and payment while en route to Rochester. The cocaine was found hidden in a secret compartment of a motor vehicle driven by an agent of the New York City supplier. Contrary to the People's contention, defendant is not an accomplice to the driver's possession ( see, Penal Law § 20.10). Defendant's solicitation of the cocaine was necessarily incidental to that possession, and application of Penal Law § 20.10 limits the culpability of defendant to that resulting from his own conduct ( see, People v. Manini, 79 N.Y.2d 561, 569-572; see also, People v. Allen, 92 N.Y.2d 378, 383-384; compare, People v. Warren, 66 N.Y.2d 831), i.e., conspiracy in the second degree ( see, People v. Gray [appeal No. 1], 284 A.D.2d 1012 [decided herewith]).
The People further contend that defendant is guilty of possessing the cocaine under the theory of constructive possession. We disagree. Viewed in the light most favorable to the People ( see, People v. Contes, supra, at 621), the evidence establishes that the shipment was controlled exclusively by the New York City supplier and defendant was a customer without any control over the person in actual possession ( see, People v. Manini, supra, at 573).