People v. Bello

• Decision Date: 22 December 1998
• Citation: 92 N.Y.2d 523,683 N.Y.S.2d 168,705 N.E.2d 1209
• Parties: , 705 N.E.2d 1209, 1998 N.Y. Slip Op. 11,382 The PEOPLE of the State of New York, Respondent, v. Edward BELLO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 168

683 N.Y.S.2d 168

92 N.Y.2d 523, 705 N.E.2d 1209, 1998

N.Y. Slip Op. 11,382

The PEOPLE of the State of New York, Respondent, v. Edward BELLO, Appellant.

Court of Appeals of New York.

Dec. 22, 1998.

Frances A. Gallagher, New York City, and M. Sue Wycoff, for appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Miriam Shire and Rona Feinberg of counsel), for respondent.

OPINION OF THE COURT

WESLEY, J.

Creativity in the marketplace is not restricted to lawful commercial activity. In this case we are called upon to determine whether the evidence before the Grand Jury, which indicated that defendant acted as a "screener" for the sale of crack cocaine by another, was legally sufficient to sustain the charge against him for criminal sale of a controlled substance in the third degree as an accomplice. We conclude that it was and therefore affirm the order of the Appellate Division reinstating the indictment.

The evidence before the Grand Jury indicated that at approximately 12:55 P.M. on February 12, 1996 defendant and Evelyn Castellar, a co-defendant in this action, were standing outside a Manhattan apartment. An undercover member of the Manhattan North Narcotics Team approached them and inquired about "nicks"--street parlance for $5 bags of crack cocaine. Defendant asked "how many [she] was looking for" and the undercover officer responded "four." Defendant asked if the officer was a "cop," to which she replied "no." Castellar then told the officer "I only have dimes [$10 bags of crack cocaine]. Come with me." The officer followed Castellar to the 12th floor of the building, where she sold the officer one "dime" bag. The undercover officer subsequently field-tested the drugs and determined that the bag contained crack cocaine. Shortly thereafter a backup officer in the vicinity arrested defendant and Castellar around the corner from where the sale occurred. The undercover officer identified defendant and Castellar.

The Grand Jury returned an indictment charging defendant and Castellar with criminal sale of a controlled substance in the third degree pursuant to Penal Law § 220.39(1). Castellar pleaded guilty to attempted criminal sale of a controlled substance in the third degree. Defendant moved to dismiss the indictment on the ground that the evidence submitted to the Grand Jury was not legally sufficient to establish the charged crime or any lesser included offense. Supreme Court granted defendant's motion, noting that "there was not sufficient evidence that this defendant aided or assisted the co-defendant to sell drugs to the undercover officer."

The Appellate Division reversed and reinstated the indictment. It determined that the evidence was sufficient to establish a prima facie case that defendant, knowing the substance being sold was crack cocaine, intentionally aided Castellar in making the sale. The court rejected defendant's contention that he was improperly charged as an accomplice to Castellar's criminal sale of a controlled substance. In support of its determination, the Appellate Division characterized defendant's questions as "elicit[ing] information that enabled co-defendant Castellar to decide whether she could make the sale" (People v. Bello, 246 A.D.2d 424, 425, 668 N.Y.S.2d 175). Leave to appeal was granted by a Judge of this Court, and we now affirm.

To dismiss an indictment on the basis of insufficient evidence before a Grand Jury, a reviewing court must consider "whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury" (People v. Jennings, 69 N.Y.2d 103, 114, 512 N.Y.S.2d 652, 504 N.E.2d 1079; People v. Swamp, 84 N.Y.2d 725, 730, 622 N.Y.S.2d 472, 646 N.E.2d 774). Legally sufficient evidence is defined inCPL 70.10(1) as "competent evidence which, if accepted as true, would establish every element of an offense charged." In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt (People v. Mayo, 36 N.Y.2d 1002, 374 N.Y.S.2d 609, 337 N.E.2d 124; People v. Swamp, supra ). The reviewing court's inquiry is limited to "whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes," and whether "the Grand Jury could rationally have drawn the guilty inference" (People v. Deegan, 69 N.Y.2d 976, 979, 516 N.Y.S.2d 651, 509 N.E.2d 345). That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry "as long as the Grand Jury could rationally have drawn the guilty inference" (id., at 979, 516 N.Y.S.2d 651, 509 N.E.2d 345).

To establish an acting-in-concert theory 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 also that defendant, in furtherance of the crime, solicited, requested, commanded, importuned or intentionally aided the principal in the commission of the crime (People v. Kaplan, 76 N.Y.2d 140, 556 N.Y.S.2d 976, 556 N.E.2d 415; Penal Law § 20.00). Although the case law discussing these criteria is somewhat fact-specific, 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 (see, ...