People v. Hibbert
| Decision Date | 24 April 2001 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>RICHARD HIBBERT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Concur — Rosenberger, J. P., Mazzarelli, Wallach, Saxe and Buckley, JJ.
Defendant was charged with criminal sale of a controlled substance in a one-count indictment which alleged that he had acted in concert with another. The evidence at trial, however, only established that an undercover officer had purchased two clear slabs of crack cocaine from Lorisha Houston. Houston had been approached by the undercover more than a half hour before, had stated her willingness to facilitate a sale, had taken prerecorded purchase money, and had been seen with defendant inside a vehicle passing money but no drugs. The prere-corded purchase money was later recovered from defendant. There was no evidence that defendant was working with Houston, that he had any role in the sale to the undercover or that he was even aware of the existence of the undercover.
Defendant moved before the trial court to dismiss merely on the ground of insufficient evidence. Since his argument was not specifically directed at the error argued on appeal, it was unpreserved (People v Gray, 86 NY2d 10, 19; CPL 470.05 [2]). In the exercise of our discretion we reach this issue in the interest of justice (People v Nevedo, 202 AD2d 183, 184).
Since the indictment charged defendant with accomplice liability on the sale from Houston to the undercover, the People were required to establish that defendant shared the requisite mental state, namely to "knowingly and unlawfully" sell drugs by soliciting, requesting, commanding, importuning or intentionally aiding Houston in that sale (Penal Law § 20.00; People v Roman, 83 NY2d 866, 867; People v Kaplan, 76 NY2d 140, 144). Accomplice liability requires, at a minimum, awareness of the proscribed conduct and some overt act in furtherance of such (People v Hames, 261 AD2d 193, lv denied 93 NY2d 1003; People v Andrades, 216 AD2d 42, lv denied 86 NY2d 789). Since there was no proof of either, defendant's motion for a trial order of dismissal should have been granted.
To continue reading
Request your trial
-
People v. Carpenter
...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 ......
-
People v. Custodro, 2009 NY Slip Op 32437(U) (N.Y. Crim. Ct. 10/22/2009)
...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,......
-
People v. Curry
...the conviction beyond a reasonable doubt. Thus, the judgment must be reversed and the indictment dismissed ( see People v. Hibbert, 282 A.D.2d 365, 365–366, 725 N.Y.S.2d 305; Matter of Cory P., 240 A.D.2d 749, 750, 660 N.Y.S.2d 39; People v. Legall, 180 A.D.2d 822, 823, 580 N.Y.S.2d 410; Pe......
- People v. Hibbert