People v. Allen

• Citation: 681 N.Y.S.2d 216,92 N.Y.2d 378,703 NE2d 1229
• Parties: , 703 N.E.2d 1229, 1998 N.Y. Slip Op. 8980 The PEOPLE of the State of New York, Respondent, v. Christopher ALLEN et al., Appellants.
• Decision Date: 22 October 1998
• Court: New York Court of Appeals

Page 216

681 N.Y.S.2d 216

92 N.Y.2d 378, 703 N.E.2d 1229, 1998

N.Y. Slip Op. 8980

The PEOPLE of the State of New York, Respondent, v. Christopher ALLEN et al., Appellants.

Court of Appeals of New York.

Oct. 22, 1998.

Edward J. Nowak, Public Defender of Monroe County, Rochester, for Christopher Allen and others, appellants.

Mark F. Cianca, Rochester, for Daniel Giallombardo, appellant.

Harris Beach & Wilcox, Rochester (Michael J. Masino, of counsel), for Brandon McPhee, appellant.

Cerulli and Massare, Rochester (Matthew R. Lembke, of counsel), for Emily Vega, appellant.

Howard R. Relin, District Attorney for Monroe County, Rochester (Thomas Rainbow Morse, of counsel), for respondent.

OPINION OF THE COURT

SMITH, Judge.

In these 54 criminal cases, combined for the purposes of this appeal, we consider what effect, if any, the exemption provision under Penal Law § 100.20 has on the prosecution of these similarly situated defendants. In each of the cases the trial court concluded that application of the exemption statute was required and, as a result, that dismissal in all cases was warranted. On appeal, that decision was reversed and the accusatory instruments were reinstated. The defendants were granted leave to appeal by several of the Judges of this Court, and, upon our full consideration, we conclude, under the facts presented here, that the exemption statute must be applied. Any further prosecution of these criminal cases is therefore precluded. ¹

Each of the cases is factually similar and identically charged. The arrests themselves resulted from a series of "reverse sting" operations conducted by the Rochester City Police Department during April of 1995. In the undercover operation, police officers posed as street marihuana dealers in an effort to lure "would-be" buyers into their sting. Rather than offer actual marihuana, the officers surreptitiously used only oregano. Notwithstanding, the undercover operation itself was a remarkable success.

Following each exchange of cash for oregano, the "would-be" buyer was arrested and charged with criminal solicitation in the fifth degree, a violation and not a crime under Penal Law § 100.00. Prior to trial, the defendants moved the Rochester City Court to dismiss the solicitation charges and the accusatory instruments. In support, the defendants argued that their conduct of attempting to purchase marihuana fell within the meaning of the Penal Law's solicitation exemption statute (Penal Law § 100.20). Therefore, the defendants urged that a legal impediment existed and barred their prosecution on charges of solicitation. The trial court agreed and dismissed the charges and the accusatory instruments.

On appeal, the County Court of Monroe County reversed and reinstated the charges. In ruling, County Court concluded that the defendants' conduct did not fall within the meaning of the solicitation exemption statute because their conduct was not of a kind which is "necessarily incidental" to the crime which they had intended to solicit. Thus, County Court ruled that application of the exemption was not required, and that the 54 criminal cases need not fail. We granted the defendants leave to appeal.

Penal Law § 100.00 reads as follows:

"A person is guilty of criminal solicitation in the fifth degree when, with intent that another person engage in conduct constituting a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct."

Two of the elements of a violation of criminal solicitation in the fifth degree are: (1) the soliciting party must possess a specific intent that another person engage in conduct constituting a crime; and (2) there must be an affirmative solicitation, request, command or some other type of attempt aimed at causing such other person to commit such crime. Even where the elements of solicitation are properly pleaded and charged, by legislative command of Penal Law § 100.20, the initial inquiry of the court has not altogether come to an end.

Entitled "Criminal solicitation; exemption", Penal Law § 100.20 states:

"A person is not guilty of criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime solicited. When under such circumstances the solicitation constitutes an offense other than criminal solicitation which is related to but separate from the crime solicited, the actor is guilty of such related and separate offense only and not of criminal solicitation."

Thus, the statute requires that a court search beyond the four corners of the accusatory instrument and decide whether or not the charged conduct falls within reach of the exemption language. In cases where it is found that the exemption statute applies, a legal impediment to conviction exists. Where a related but separate crime is found to exist, prosecution of the related but separate crime may proceed to the fullest extent of the law. However, it is by falling into this class of legislatively exempted cases that the 54 prosecutions at issue in this case fail.

In the instant cases, the People urge that the solicitation exemption should not apply in that the defendants' conduct was not necessarily incidental to the commission of a criminal sale of marihuana. In support, the People direct our attention to People v. Lubow, 29 N.Y.2d 58, 323 N.Y.S.2d 829, 272 N.E.2d 331, where it was stated that the criminal solicitation statutes were enacted to fill the gap created when conduct falls short of an attempt to commit a crime, but " 'involves sufficient culpability to warrant criminal sanctions' " (People v. Lubow, 29 N.Y.2d, at 65, 323 N.Y.S.2d 829, 272 N.E.2d 331). While such a pronouncement still rings as true today, this in no way serves to explain away the Legislature's enactment of the solicitation exemption statute. Moreover, such a pronouncement does not offer this Court a haven from our duty to see that the Legislature's commands are properly carried out. In matters of statutory construction, " 'legislative intent is "the great and controlling principle," and our proper judicial function is to "discern and apply the will of the Legislature" ' " (Matter of Scotto v. Dinkins, 85 N.Y.2d 209, 214, 623 N.Y.S.2d 809, 647 N.E.2d 1317, quoting Matter of Sutka v. Conners, 73 N.Y.2d 395, 403, 541 N.Y.S.2d 191, 538 N.E.2d 1012).

Some lower courts have previously held that section 100.20 can be interpreted to apply only in circumstances where there exists a related but separately chargeable criminal offense (see, People v. Barnes, 170 Misc.2d 979, 653 N.Y.S.2d 818 [interpreting People v. Manini, 79 N.Y.2d 561, 584 N.Y.S.2d 282, 594 N.E.2d 563]; People v. Spencer, 66 Misc.2d 658, 322 N.Y.S.2d 266). Our review of the statute does not allow us to reach the same conclusion.

As the "would-be" buyers in these cases, the defendants are accused of soliciting the occurrence of a criminal sale of marihuana. In a typical criminal sale of marihuana, the existence of a willing buyer is a prerequisite to the commission of the completed crime. At a minimum, a criminal sale of marihuana requires the existence of some interrelationship as between the seller and another person (see, Penal Law §§ 221.00, 220.00[1] ). While it may be true that under Penal Law § 220.00(1), liability for a criminal sale can arise upon a mere disposal, offer or agreement to sell, that Penal Law provision focuses upon the conduct of the seller. Here, conversely, the exemption statute commands the court to focus upon the conduct of the soliciting party. Upon examination of the conduct engaged in by these defendants, it is clear that a criminal sale of marihuana could not have occurred but for their direct participation. Therefore, their conduct was necessarily incidental to the commission of the completed crime.

In People v. Manini, supra, this Court was faced with the interpretation of a similar Penal Law exemption statute, Penal Law § 20.10. ² Although Manini dealt with accomplice liability, as opposed to liability for solicitation, the exemption statute dealt with there is similar to the one here in that both statutes exempt from liability conduct which is "necessarily incidental" to the commission of the underlying crime or offense. There,...