Opinion
2004NY072066
Decided April 14, 2005.
Abraham B. Strassfeld, Brooklyn, NY, for the Defendant.
Jeffrey Viscomi, Office of the District Attorney of New York County, NY, NY, for the People.
The defendant stands charged with Criminal Sale of Marijuana in the Fourth Degree (Penal Law § 221.40) and Unlawful Possession of Marijuana (Penal Law § 221.05) upon an allegation that he participated in the sale of marijuana to an undercover police officer. The information alleges that at approximately 7:20 p.m. on September 28, 2004, an undercover police officer approached the defendant and his three co-defendants, Ramon Tavares, Euseby Rodriguez and Joel Lugo, who were standing in front of 117 Sherman Avenue in New York County. The officer stated to Lugo that he wanted "twenty" and Lugo directed the officer to speak to Tavares. Tavares then gave the officer one bag of marijuana in exchange for twenty dollars in U.S. currency. According to the information, the defendant was "looking north" and co-defendant Rodriquez was "looking south and west" during the exchange. A large bag containing 29 smaller bags of marijuana was recovered from Tavares' jacket.
In his omnibus motion, the defendant, inter alia, moves to dismiss the information on the ground that it is facially insufficient. Upon consideration of the facts of this case and the relevant law, the defendant's motion is granted.
A criminal court information is insufficient on its face and subject to dismissal unless it contains non-hearsay factual allegations which, if true, establish every element of the crimes charged and provide reasonable cause to believe that the defendant committed them. See CPL §§ 100.40 (1); 100.15(3); People v. Alejandro, 70 NY2d 133 (1987); People v. Dumas, 68 NY2d 729 (1986). "A person is guilty of criminal sale of a marijuana in the fourth degree when he knowingly and unlawfully sells marijuana." Penal Law § 221.40. "A person is guilty of unlawful possession of marijuana when he knowingly and unlawfully possesses marijuana." Penal Law § 221.05. Where, as here, a defendant is charged under an acting in concert theory, the People are required to establish that the defendant, "acting with the mental culpability required for the commission thereof, . . . solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct." Penal Law § 20.00. The People must establish that the defendant shared the intent or purpose of the principal actor(s). See People v. Kaplan, 76 NY2d 140 (1990). In regard to the sale count, "integral to each inquiry is whether a defendant exhibited any calculated or direct behavior that purposefully affected or furthered the sale of the controlled substance." People v. Bello, 92 NY2d 523, 526 (1998).
Under these guidelines, the factual allegations of the instant information are insufficient to establish that the defendant acted in concert with any of his co-defendants to either sell or possess marijuana. As stated above, the sole allegation concerning the defendant is that he looked in a northerly direction while Tavares sold marijuana to the officer. The defendant is not otherwise mentioned in the information. The People do not allege that he directed the undercover officer to Tavares, as is alleged in regard to Lugo, or that he communicated in any manner with his co-defendants or the officer, or otherwise assisted in the exchange. Nor do the People allege that money, drugs or other contraband was recovered from the defendant's person, only from Tavares. 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" ( People v. Bello, supra) or any act intended to "importune or intentionally aid" his co-defendants. See Penal Law § 20.00.
The defendant's conduct clearly does not rise to the level of a "steerer" or "screener" for the sale since he had no interaction with the officer. Compare People v. Bello, supra [defendant asked officer how much he wanted and if she was a police officer]; People v. Marquez, 300 AD2d 83 (1st Dept. 2002) [defendant directed officer to pay co-defendant, instructed co-defendant to go inside to retrieve drugs and told officer to wait]; People v. Marchena, 270 AD2d 88 (1st Dept. 2000) [defendant asked officer what he needed, instructed him to wait and retrieved seller from building]; People v. Vargas, Crim Ct, NY County, October 29, 2002, Kaplan, J., Docket No. 2002NY052254) [as arresting officers approached, defendant whistled to co-defendant and made cutting motion across his throat area]. Indeed, even where the defendant directs the buyer to the seller, that alone is insufficient to establish accomplice liability. See People v. Bello, supra; People v. Johnson, 238 AD2d 267 (1st Dept. 1997); People v. Lopez, 213 AD2d 255 (1st Dept. 1995); People v. Rosario, 193 AD2d 445 (1st Dept. 1993).
Further, while it is undisputed that a "lookout" may bear criminal liability for the underlying crime ( see People v. Fuentes, 246 AD2d 474 (1st Dept. 1998); People v. Coulter, 240 AD2d 756 [2nd Dept. 1997]; People Suarez, 162 AD2d 301 [1st Dept. 1990]), the instant information simply fails to support such a theory. By contrast, in People v. Coulter, supra, after the defendant and his co-defendant followed the complainants for several blocks, the defendant kept watch while the co-defendant robbed them and both men fled together. Similarly, in People v. Williams, 172 AD2d 448 (1st Dept. 1991), the defendant continually looked around while his co-defendant sold cocaine to an undercover police officer and handed the proceeds to the defendant. Thus, the judgments of conviction in both Coulter and Williams were upheld on appeal upon a theory of accomplice liability.
More comparable to the instant case is People v. Hatchett, 196 Misc 2d 892 (Crim Ct, NY County 2003), where the information alleged only that the defendant opened a door to a building for someone who then purchased drugs inside building. This court found the information to be facially insufficient to support the charges of sale and possession of marijuana, since the alleged conduct constituted merely a courtesy to a stranger. The defendant's conduct in the instant case is even less culpable. Indeed, the allegations establish only the defendant's presence at the location, a public street, where the sale allegedly took place. It is settled law that mere presence at the scene of a crime is an insufficient predicate for a finding of shared intent. See People v. Cabey, 85 NY2d 417 (1995); People v. Yarrell, 75 NY2d 828 (1990). The People have failed to provide the court with any facts or evidence that may enable them to draw a facially sufficient accusatory instrument. See CPL § 140.55.
Accordingly, the defendant's motion to dismiss the information is granted. In light of the dismissal of the information, the court does not rule on the defendant's remaining motions.