People v. Carpenter

• Decision Date: 27 April 2016
• Docket Number: 2013-02036, Ind. No. 984/10.
• Parties: The PEOPLE, etc., respondent, v. Lester CARPENTER, appellant.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 1130

30 N.Y.S.3d 299

2016 N.Y. Slip Op. 03185

The PEOPLE, etc., respondent,

v.Lester CARPENTER, appellant.

2013-02036, Ind. No. 984/10.

Supreme Court, Appellate Division, Second Department, New York.

April 27, 2016.

Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, Merri Turk Lasky, and Nancy Fitzpatrick Talcott of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered February 14, 2013, convicting him of attempted criminal possession of a controlled substance in the second degree, criminal possession of a weapon in the second degree, and conspiracy in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant and six codefendants were charged under an acting-in-concert theory with, inter alia, attempted criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the second degree. At a jury trial, the People presented evidence that one of the codefendants, James Jones, set up a meeting with an individual named Joseph Azoro to purchase six ounces of cocaine in front of a building located in the Edgemere housing projects in Queens. Azoro was found later that day in front of the entrance to that building with a gunshot wound

to his abdomen. Although there was no proof that the defendant was present when Azoro was shot, the People alleged that he was liable, under an acting-in-concert theory, for the crimes of attempted criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the second degree. The People asserted, among other things, that the defendant assisted in the commission of these crimes by making phone calls to help lure Azoro to the housing project and by telling Jones where guns could be located. The jury returned a verdict finding the defendant guilty of, inter alia, attempted criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the second degree. We affirm.

The statutory definition of accessory liability provides that “[w]hen one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct” (Penal Law § 20.00

). Inasmuch as the statute requires that the accomplice act with the mental culpability required for the commission of the underlying crime, an accomplice must have a shared intent, or “community of purpose” with the principal (People v. Cabey, 85 N.Y.2d 417, 421, 626 N.Y.S.2d 20, 649 N.E.2d 1164 [internal quotation marks omitted]; see

People v. Allah, 71 N.Y.2d 830, 832, 527 N.Y.S.2d 731, 522 N.E.2d 1029 ; People v. Carter, 293 A.D.2d 484, 485, 741 N.Y.S.2d 546 ). In addition to the mens rea requirement, the statute includes an actus reus component as well: “the accomplice must have intentionally aided the principal in bringing forth a result” (People v. Kaplan, 76 N.Y.2d 140, 146, 556 N.Y.S.2d 976, 556 N.E.2d 415 [emphasis omitted] ). Accordingly, “[a]ccomplice liability requires, at a minimum, awareness of the proscribed conduct and some overt act in furtherance of such” (People v. Hibbert, 282 A.D.2d 365, 366, 725 N.Y.S.2d 305 ). “The key to [the] analysis is whether a defendant intentionally and directly assisted in achieving the ultimate goal of the enterprise” (People v. Bello, 92 N.Y.2d 523, 526, 683 N.Y.S.2d 168, 705 N.E.2d 1209 ).

Here, the defendant was convicted of, among other crimes, attempted criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the second degree. Penal Law § 220.18

provides that “[a] person is guilty of criminal possession of a controlled substance in the second degree when he or she knowingly and unlawfully possesses ... one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of four ounces or more” (Penal Law § 220.18[1]

).

“A defendant is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00

; see

People v. Naradzay, 11 N.Y.3d 460, 466, 872 N.Y.S.2d 373, 900 N.E.2d 924 ). In order to constitute an attempt, the defendant's “conduct must have passed the stage of mere intent or mere preparation to commit a crime” (People v. Mahboubian, 74 N.Y.2d 174, 189, 544 N.Y.S.2d 769, 543 N.E.2d 34 ; see

People v. Naradzay, 11 N.Y.3d at 466, 872 N.Y.S.2d 373, 900 N.E.2d 924 ). In other words, the defendant must have “engaged in conduct that came ‘dangerously near’ commission of the completed crime” (People v. Kassebaum, 95 N.Y.2d 611, 618, 721 N.Y.S.2d 866, 744 N.E.2d 694, quoting People v. Acosta, 80 N.Y.2d 665, 670, 593 N.Y.S.2d 978, 609 N.E.2d 518 ). “The ‘dangerously near’ standard does not, however, mandate that the defendant take ‘the final step necessary’ to complete the offense” (People v. Naradzay, 11 N.Y.3d at 466, 872 N.Y.S.2d 373, 900 N.E.2d 924, quoting People v. Mahboubian, 74 N.Y.2d at 190, 544 N.Y.S.2d 769, 543 N.E.2d 34 ; see

People v. Bracey, 41 N.Y.2d 296, 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094 ).

Here, the evidence was legally sufficient to establish, beyond a reasonable doubt, the defendant's guilt of attempted criminal possession of a controlled substance in the second degree. The evidence presented by the People demonstrated that the codefendants came “dangerously near” the commission of the completed crime (People v. Mahboubian, 74 N.Y.2d at 192, 544 N.Y.S.2d 769, 543 N.E.2d 34

), and that they therefore engaged in conduct which constituted the offense of attempted criminal possession of cocaine in the second degree (see Penal Law § 20.00 ; People v. Acosta, 80 N.Y.2d at 671, 593 N.Y.S.2d 978, 609 N.E.2d 518 ; People v. Bens, 5 A.D.3d 391, 391–392, 772 N.Y.S.2d 711 ; see also

People v. Kassebaum, 95 N.Y.2d at 618–619, 721 N.Y.S.2d 866, 744 N.E.2d 694 ; accord

People v. Acosta, 198 A.D.2d 285, 285–286, 603 N.Y.S.2d 569 ). In addition to establishing that the underlying crime of attempted possession had been committed, the People also demonstrated that the defendant shared a “community of purpose” with the codefendants with respect to obtaining possession of Azoro's cocaine (People v. Cabey, 85 N.Y.2d at 421, 626 N.Y.S.2d 20, 649 N.E.2d 1164 [internal quotation marks omitted] ). The recorded phone conversations between Jones and the defendant showed that the defendant was aware of the scheme to obtain Azoro's cocaine and that he was promised a share of the proceeds if they succeeded in gaining possession of it (see People v. Cortes, 112 A.D.2d 946, 946–947, 492 N.Y.S.2d 627

). Furthermore, the People's evidence showed that the defendant assisted in convincing Azoro to come to the housing project to complete the sale of the cocaine even though Azoro suspected that Jones was setting him up. The defendant called Azoro on the phone and assured him that the transaction was legitimate and that Jones was acting in good faith (see

People v. Ficarrota, 91 N.Y.2d 244, 249, 668...