People v. Custodro, 2009 NY Slip Op 32437(U) (N.Y. Crim. Ct. 10/22/2009)
| Decision Date | 22 October 2009 |
| Docket Number | No. 2009NY046200,2009NY046200 |
| Citation | 2009 NY Slip Op 32437 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK v. JUAN CUSTODRO, Defendant. |
| Court | New York Criminal Court |
The defendant is charged with Criminal Sale of Marihuana in the Fourth Degree (P.L. § 221.40) and Unlawful Possession of Marihuana (P.L. § 221.05).
In an omnibus motion, the defendant seeks: (1) dismissal of the charges on the grounds of facial insufficiency; (2) suppression of physical evidence obtained from defendant in contravention of his rights; (3) suppression of all statements allegedly obtained from defendant; (4) suppression of any alleged identification of defendant; and (5) preclusion of the prosecution's use of defendant's prior or subsequent criminal history, or uncharged criminal, vicious, or immoral conduct.
The defendant also seeks discovery, submits a Demand to Produce, and requests a Bill of Particulars and reservation of rights to make additional applications based on the People's production and subsequent case development. The People respond to the defendant's motion and applications, provide their Voluntary Disclosure Form, and request discovery from the defendant.
The motions are decided as follows.
As stated above, the defendant has moved to dismiss the accusatory instrument on facial insufficiency grounds for its failure to allege a prima facie case as to the offenses charged.
The factual part of the information in this case, which is signed by a detective of the Narcotics Boro Manhattan North of the New York City Police Department, states as follows:
Deponent states that deponent is informed by Detective Larry Dunn . . . that informant Dunn observed the defendant standing directly next to separately charged defendant (Saule Bernabe . . . ), looking up and down the street and engaging in conversation with separately charged defendant Bernabe as separately charged defendant Bernabe handed a small object to separately charged defendant Victor Lantigua ( . . . ) in exchange for which separately charged defendant Lantigua handed separately charged defendant Bernabe a sum of U.S. Currency.
Deponent further states that deponent is informed by Detective Jesus Roldan . . . that informant Roldan recovered one (1) clear bag containing marijuana from inside the defendant's underwear.
Deponent is further informed by informant that the above-described substance is in fact what it is alleged to be based upon information and belief, the source of which is as follows: his professional training as a police officer in the identification of drugs, his prior experience as a police officer in drug arrests, the odor emanating from the substance, observation of the packaging which is characteristic of this type of drug and a field test of the substance which confirmed that the substance is in fact what it is alleged to be.
Deponent further states that deponent is informed by Detective Alan Nurse . . . that informant Nurse recovered two (2) clear bags containing marijuana from inside of a cigarette box inside of separately charged defendant's (Victor Lantigua . . . ) pants pocket.
Deponent is further informed by informant that the above-described substance is in fact what it is alleged to be based upon information and belief, the source of which is as follows: his professional training as a police officer in the identification of drugs, his prior experience as a police officer in drug arrests, the odor emanating from the substance, observation of the packaging which is characteristic of this type of drug and a field test of the substance which confirmed that the substance is in fact what it is alleged to be.
Supporting depositions signed by Detectives Roldan, Dunn, and Nurse were filed by the People in this case.
In order for an accusatory instrument to be sufficient on its face, it must allege "facts of an evidentiary character supporting or tending to support the charges" (C.P.L. § 100.15(3)), provide "reasonable cause to believe that the defendant committed the offense charged" (C.P.L. § 100.40(1)(b)), and contain non-hearsay allegations which "establish, if true, every element of the offense charged and defendant's commission thereof" (C.P.L. § 100.40(1)(c); see also People v. Alejandro, 70 N.Y.2d 133 [1987]). "'Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." (C.P.L. § 70.10(2).) The failure of an accusatory instrument to allege an element of the charged offense is a non-waivable jurisdictional defect. (See People v. Kalin, 12 N.Y.3d 225, 229 [2009]; People v. Jones, 9 N.Y.3d 259, 262 [2007].)
In reviewing allegations in an accusatory instrument for facial sufficiency, the Court should give such allegations "a fair and not overly restrictive or technical reading," so long as they provide the accused with notice sufficient to prepare a defense and "are adequately detailed to prevent a defendant from being tried twice for the same offense[.]" (People v. Casey, 95 N.Y.2d 354, 360 [2000].)
A person is guilty of Criminal Sale of Marihuana in the Fourth Degree when he or she "knowingly and unlawfully sells marihuana . . . ." (P.L. § 221.40.) In this context, "'[s]ell' means to sell, exchange, give or dispose of to another, or to offer or agree to do the same." (P.L. § 220.00(1).)
As the instant accusatory instrument does not include facts from which it might reasonably be inferred that the defendant acted as principal in any alleged sale of marijuana, the Court must consider whether it can reasonably be inferred from the facts in the complaint that the defendant's alleged conduct comprises sale in the fourth degree under a theory of accomplice liability or "acting in concert." (See People v. Kaplan, 76 N.Y.2d 140 [1990]; see also People v. Bello, 92 N.Y.2d 523, 526 [1998].) A person may be liable for the criminal conduct of another 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." (P.L. § 20.00.) "Accomplice liability requires, at a minimum, awareness of the proscribed conduct and some overt act in furtherance of it." (People v. Hibbert, 282 A.D.2d 365, 366 [1st Dept. 2001]; see also People v. Hiett, 2001 N.Y. Slip Op. 40451(U) [Sup. Ct., N.Y. Co. 2001].) Therefore, in the context of this case, the Court considers two questions: 1) does the accusatory instrument allege actions by the defendant from which it can reasonably be inferred that he had the requisite mental state, in other words, was he aware of the criminal sale of marijuana?; and 2) does the accusatory instrument allege conduct that constitutes soliciting, requesting commanding, importuning, or intentionally aiding separately charged defendant Bernabe in furtherance of said sale? (See Kaplan, 76 N.Y.2d at 140, 147; see also Bello, 92 N.Y.2d at 526.)
Determining whether the allegations in an accusatory instrument are sufficient to comprise a charge of sale by way of accomplice liability is a fact-specific inquiry; it requires consideration of the defendant's conduct within the totality of the circumstances of the alleged drug sale, including the sequence and timing of events, the location of the alleged participants, and their conduct before and after the sale at issue. (See Bello, 92 N.Y.2d at 526.) Mere presence, even with awareness of the crime occurring, is insufficient to establish accomplice liability (see People v. Yarrell, 75 N.Y.2d 828, 829 [1990]; see also People v. Tucker, 72 N.Y.2d 849, 850 [1988]; People v. Simon, 2 Misc. 3d 1002(A) [Crim. Ct., N.Y. Co. 2003]), as is presence for the mere purpose of personal purchase of drugs (see People v. Smith, 184 A.D.2d 310 [1st Dept. 1992], lv. denied, 81 N.Y.2d 847 [1993]). Where, however, the allegations set forth a coordinated effort by two or more individuals "acting in concert," all individuals may be charged with the sale, as their conduct may be found to be "indicative of a shared intent to sell drugs within the meaning of Penal Law § 20.00." (People v. Hatchett, 196 Misc. 2d 892, 895 [Crim. Ct., N.Y. Co. 2003]; see People v. Witherspoon, 156 A.D.2d 306 [1st Dept. 1989], aff'd sub. nom People v. Carter, 77 N.Y.2d 95 [1990], cert. denied, 499 U.S. 967 [1991] (); see also People v. Henderson, 22 A.D.3d 311 [1st Dept. 2005], lv. denied, 6 N.Y.3d 813 [2006] ().) Proximity to, coupled with open discussion of, the drug sale with alleged accomplices, particularly a principal, may allow for a logical inference that a defendant and others were acting as a team. (Bello, 92 N.Y.2d at 527; but see People v. Garcia, 2/5/2001 N.Y. L.J. 26, (col. 5) [Crim. Ct., N.Y. Co. 2001] (allegation that defendant stood near codefendants while they sold marijuana does no give rise to an inference that he solicited or intentionally aided the others in the sale).)
The defendant challenges the sufficiency of the accusatory instrument's allegations as to both elements necessary for a charge of sale under an accomplice theory of liability. He argues that the allegations fail to establish his knowledge of the criminal sale and that his alleged conduct does not establish intentional aid. The People do not specifically address defendant's arguments but argue that the allegations in the accusatory instrument...
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