People v. Hatchett

CourtNew York Criminal Court
Citation196 Misc.2d 892,768 N.Y.S.2d 123
PartiesTHE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>ANUER HATCHETT, Defendant.
Decision Date28 July 2003

196 Misc.2d 892
768 N.Y.S.2d 123

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
v.
ANUER HATCHETT, Defendant.

July 28, 2003.


Abraham J. Mayers, New York City, for defendant.

Robert M. Morgenthau, District Attorney, New York City (Patricia O'Connor of counsel), for plaintiff.

OPINION OF THE COURT

DEBORAH KAPLAN, J.

The defendant stands charged with criminal sale of marijuana in the fourth degree (Penal Law § 221.40) and criminal possession of marijuana in the fifth degree (Penal Law § 221.10 [2]). The information alleges that, at approximately 2:10 P.M. in front of 75 Post Avenue in New York County, an undercover

[196 Misc.2d 893]

police officer observed the defendant acting in concert with Hector Vizciano, Kelby Escotto and Carlos Pena in the sale of marijuana to separately charged defendant Derrick Nelson. As to the defendant's alleged role, the information states only that he held open a door for Nelson.

According to the information, Nelson approached codefendant Pena and engaged in a brief conversation with him. Pena then engaged in a conversation with defendant Escotto, after which Escotto walked to the end of Post Avenue and then back to her original location while looking into parked and moving vehicles. Escotto then approached Pena and spoke to him. When Pena motioned with his head in the direction of the door to 75 Post Avenue, Nelson approached the door. Defendant Hatchett, who was standing near the door, held the door open for Nelson. Defendant Vizciano, who was standing inside the doorway, exchanged a small object for currency with Nelson. The information alleges that the undercover officer observed Nelson leave the location in a white livery van and that, when he stopped the van at West 204th Street and Vermilyea Avenue, he recovered nine plastic bags of crack cocaine and one clear ziplock bag of marijuana from Nelson. The undercover officer also recovered 65 bags of marijuana from Vizciano's pants pocket and a total of $600 from defendants Vizciano, Hatchett, Escotto and Pena.

In his omnibus motion, the defendant seeks, inter alia, an order dismissing the information as facially insufficient. After consideration of the facts of this case and the relevant law, the defendant's motion to dismiss is granted.

A criminal court information is insufficient on its face and must be dismissed unless it contains nonhearsay factual allegations which, if true, establish every element of the crimes charged and provide reasonable cause to believe that the defendant committed them. (See CPL 100.40 [1]; 100.15 [3]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729 [1986].) "A person is guilty of criminal sale of a marihuana in the fourth degree when he knowingly and unlawfully sells marihuana." (Penal Law § 221.40.) "A person is guilty of criminal possession of a marihuana in the fifth degree when he knowingly and unlawfully possesses * * * marihuana * * * of an aggregate weight of more than twenty-five grams." (Penal Law § 221.10 [2].) Furthermore, where, as here, a defendant is charged under an acting in concert theory, the People are required to establish that the defendant, "acting with the mental culpability required for the commission thereof, * * *

[196 Misc.2d 894]

solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct." (Penal Law § 20.00.) The People must establish that the defendant shared the intent or purpose of the principal actor(s). (See People v Kaplan, 76 NY2d 140 [1990].) "[I]ntegral to each inquiry is...

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2 practice notes
  • People v. Custodro, 2009 NY Slip Op 32437(U) (N.Y. Crim. Ct. 10/22/2009), No. 2009NY046200
    • United States
    • New York Criminal Court
    • October 22, 2009
    ...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 ......
  • Santiago v. United States, 16-cv-5405 (ALC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 17, 2018
    ...acting in concert with his codefendant. See Petitioner's Supplemental Brief at 8-9, 16-cv-05405, ECF No. 26 (citing People v. Hatchett, 768 N.Y.S.2d 123, 124 (N.Y. Cty. Crim. Ct. 2003); People v. Ramirez, 980 N.Y.S.2d 277, 2013 WL 5496126 (N.Y. Cty. Crim. Ct. 2013)). Even assuming the likel......
2 cases
  • People v. Custodro, 2009 NY Slip Op 32437(U) (N.Y. Crim. Ct. 10/22/2009), No. 2009NY046200
    • United States
    • New York Criminal Court
    • October 22, 2009
    ...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 ......
  • Santiago v. United States, 16-cv-5405 (ALC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 17, 2018
    ...acting in concert with his codefendant. See Petitioner's Supplemental Brief at 8-9, 16-cv-05405, ECF No. 26 (citing People v. Hatchett, 768 N.Y.S.2d 123, 124 (N.Y. Cty. Crim. Ct. 2003); People v. Ramirez, 980 N.Y.S.2d 277, 2013 WL 5496126 (N.Y. Cty. Crim. Ct. 2013)). Even assuming the likel......

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