People v. Braithwaite

• Decision Date: 17 August 1994
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Enrique BRAITHWAITE, Defendant. /48
• Court: New York Supreme Court

Page 284

617 N.Y.S.2d 284

162 Misc.2d 613

The PEOPLE of the State of New York, Plaintiff, v. Enrique BRAITHWAITE, Defendant.

Supreme Court, New York County,

Part 35/48.

Aug. 17, 1994.

James Tatum, for defendant.

Robert M. Morgenthau, Dist. Atty. of New York County (Frank Glasser, of counsel), for plaintiff.

SHEILA ABDUS-SALAAM, Justice:

At the conclusion of the People's case, Defendant moved, pursuant to CPL 290.10, for a trial order of dismissal as to all six counts of the indictment. From the bench, I denied the motion with respect to counts two through six. However, I reserved decision as to count one, which charges Defendant with Criminal Sale of a Controlled Substance in the second degree (CSCS2? ) to consider the parties' arguments and to review the relevant law. Before giving the case to the jury, I also dismissed that count, summarizing my reasons. This decision is a more detailed explanation for dismissing the top count.

Count one of the indictment is based upon a taped conversation Defendant had on April 3, 1990 with a confidential informant ("CI"), Michael Dinnall, during which Defendant offers to sell Dinnall an ounce of cocaine. Relevant excerpts of the transcript of this conversation follow.

CI: Here you go. Hey uhh so what happened to your friend man, he still in jail?

BRAITHWAITE: Hell yeah, he got busted.

CI: Damn.

BRAITHWAITE: Talking to this other dude though and see, if I can get. How much dope you want like an ounce or so you willing to spend like $800?

CI: Hey, I told you man I want to do something so, so I can make some money, yeah. If, if you could hook it up man we can, we can work something out.

BRAITHWAITE: Alright. How soon can you get it, dude gonna find out for me today. Another guy.

* * * * * *

CI: See, you're, you're, you're notorious for, for building up my hopes and stuff and then stiffing me, you know.

BRAITHWAITE: Listen, listen let me tell you something alright once I get the price off the dude I'll come and I'll let you know what the deal is that's all because this new guy is checking on it. See what I'm saying before we need to buy (UI). Them shit look cheap. Way back six, seven, eight years ago now it's a different ball game. You know how long I don't buy a ounce of fuckin' shit.

In support of his motion to dismiss count one, Defendant relies on People v. Rivera, 59 A.D.2d 874, 399 N.Y.S.2d 662 (1st Dept.1977). Rivera, although admittedly not on point, stands for the proposition that if the People fail to prove beyond a reasonable doubt, any of the three elements of the crime of Criminal Sale of a Controlled Substance in the first degree (CSCS 1? ), a conviction for that crime is invalid.

Defendant contends that the People failed to establish beyond a reasonable doubt that he knowingly and unlawfully sold a preparation, compound or mixture weighing in the aggregate one-half ounce or more containing a narcotic drug, in violation of Penal Law § 220.41, subdivision 1. Like CSCS 1? , sale is one of the essential elements of the offense of CSCS 2? . Penal Law § 220.00 subdivision 1 defines the term "sell" to mean "to sell, exchange, give or dispose of to another, or to offer or agree to do the same."

In opposition, the People rely on People v. Gondolfo, 94 Misc.2d 696, 405 N.Y.S.2d 890 (Sup.Ct.N.Y.Co.1978). Citing People v. Goetz, 77 Misc.2d 319, 352 N.Y.S.2d 829 and People v. Lawson, 84 Misc.2d 24, 374 N.Y.S.2d 270, Gondolfo sets forth the following two-pronged test for determining what constitutes an offer or agreement to sell under the statute:

Of course, not every casual offer is made criminal but where a defendant has made a bona fide offer or agreement to sell and there is sufficient evidence to indicate an ability and intent on the part of the defendant to complete the transaction, a conviction for sale may be obtained without proof of possession of the contraband.

Id., 94 Misc.2d at 702, 405 N.Y.S.2d 890. See also People v. Jones, 63 A.D.2d 582, 583, 404 N.Y.S.2d 622; People v. Mullen, 152 A.D.2d 260, 266, 549 N.Y.S.2d 520; People v. Redden, 181 A.D.2d 1016, 1017, 581 N.Y.S.2d 507.

The People argue that the definition of sale has been met and that Defendant's conduct meets the Gondolfo test in that Defendant was ready, willing and able to supply an ounce of cocaine to Dinnall, to whom he had previously sold a gram of cocaine on March 23, 1990; Defendant also sold a gram of cocaine to another CI, Jeff Stephen, on June 7, 1990; Defendant introduced Stephen to a supplier who was willing to sell Stephen a half-ounce of cocaine on May 31, 1990; and Defendant made representations of his ability to procure drugs, exhibited a familiarity with drugs and with drug sellers.

I disagree and find that Defendant's statements on April 3, 1990 do not constitute a "bona fide" offer or agreement to sell Dinnall an ounce of cocaine. Nor is there sufficient evidence to indicate an ability and intent on Defendant's part to complete the transaction as Gondolfo, supra requires.

The Penal Law does not define "offer." And, except for distinguishing an offer which is "casual" from one which is "bona fide", neither does Gondolfo or any other decision treating the subject in the context of a criminal case. It is therefore necessary to seek guidance from the law of contracts.

Williston on Contracts, 4th Ed. § 4:4 defines "offer" to be "a conditional promise dependent for its enforceability on the offeree giving in exchange the offeror's requested act, forbearance or return promise." In other words, the promise must be sufficiently...