People v. Lawson

• Citation: 84 Misc.2d 24,374 N.Y.S.2d 270
• Parties: The PEOPLE of the State of New York v. Alfred LAWSON, Defendant.
• Decision Date: 22 October 1975
• Court: United States State Supreme Court (New York)

Page 270

374 N.Y.S.2d 270

84 Misc.2d 24

The PEOPLE of the State of New York v. Alfred LAWSON, Defendant.

Supreme Court, New York County, Part 101.

Oct. 22, 1975.

Sterling Johnson, Jr., Sp. Asst. Dist. Atty. by James Kindler, Asst. Dist. Atty., Helen Rosenbloom, Student Legal Asst., for plaintiff.

Lawrence Levner, New York City, for defendant.

LEON B. POLSKY, Justice:

On this motion to inspect and dismiss, the Court has read the minutes of the proceedings before the grand jury which resulted in the indictment of the defendant for the class A felony of criminal sale of a dangerous drug in the first degree. The only witness before the grand jury was an undercover police officer who testified to a single coversation with the defendant, eleven months earlier, during which the defendant allegedly offered and agreed to sell one kilogram of heroin to the officer for 'about' $25,000. The officer testified, without elaboration, that the actual sale did not occur and he never saw the defendant after the conversation.

The question here is whether this evidence of a naked offer or agreement is sufficient to hold the defendant upon an indictment charging sale.

Penal Law section 220.00(5), in force at the time of the alleged commission of the crime read:

"Sell' means to sell, exchange, give or dispose of to another, or to offer or agree to do the same.'

Penal Law section 220.44, then in force, read:

'A person is guilty of criminally selling a dangerous drug in the first degree when he knowingly and unlawfully sells a narcotic drug consisting of one or more preparations . . . of an aggregate weight of sixteen ounces or more, containing (a narcotic drug).'

Although the quoted statutes, which were read to the grand jurors, seem on their face to proscribe the mere knowing utterance of words constituting an offer or agreement, the People have conceded that, 'A specific intent to sell narcotics is an implicit and essential element of the crime of offering to sell narcotics . . . (for) it is senseless to believe that the Legislature intended to punish as sellers offerors who were merely puffing or bragging and had no intention to consummate the sale.' ¹ This interpretation has been given similar statutes by courts in Arizona and California (See, State v. Enriquez, 109 Ariz. 570, 514 P.2d 491 (1973); State v. Espinosa, 101 Ariz. 474, 421 P.2d 1 (1963); People v. Jackson, 59 Cal.2d 468, 381 P.2d 1 (1963); People v. Brown, 55 Cal.2d 64, 9 Cal.Rptr. 816, 357 P.2d 1072 (1960). See also, Shanks v. Commonwealth, 463 S.W.2d 312 (Ky., 1971). Contra, Hilyard v. State, 324 N.E.2d 516 (Ind., 1975)).

Although counsel and the court have found no controlling New York case directly in point, it would seem that People v. Kenny, 30 N.Y.2d 154, 331 N.Y.S.2d 392, 282 N.E.2d 295 (1972) supports the correctness of the People's concession.

In Kenny the defendant had offered to sell marihuana and in fact delivered some substance to the buyer who then consumed it. The specific issue litigated was whether the buyer had sufficient experience with marihuana to qualify as an expert and thus be permitted to give his opinion that the consumed material was marihuana. The Court of Appeals found the buyer's qualifications or expertise were not established. Therefore, since there was no evidence apart from his testimony that the substance transferred was a dangerous drug, it affirmed the judgment of the appellate division which had reversed the conviction and dismissed the indictment.

If a mere offer is sufficient to bring a defendant within the definition of 'sale', then there would have been no need in Kinny for the People to have proven the nature of the substance transferred. ² Indeed if the mere offer is sufficient to establish sale, then the introduction of drugs in evidence together with identifying expert testimony could be dispensed with in every case where a transfer is preceded by negotiation and agreement. Although not referred to in the Court of Appeals opinion, such a contention was made by the People in its brief seeking reinstatement of Kenny's conviction. (Appellant's Brief, to the Court of Appeals, p. 6). The Court's affirmance of the appellate division reversal and dismissal of the indictment is implicit rejection of any suggestion that a mere verbalization of an offer to sell drugs is sufficient. ³ I therefore hold that where the gravamen of the offense is an offer or agreement, the People must establish a specific intent to transfer the drug which is the subject of such offer or agreement. In so holding, I wish to emphasize that in some factual situations the People may establish intent without being able to point to any identifiable substance as the subject of the offer of agreement (See, e.g., People v. Brown, supra; People v. Mora, 42 Cal.App.3d 891, 117 Cal.Rptr. 262, 268 (1974)).

Without attempting to delineate the factors or combination of factors that would or would not be sufficient in any given case, it would seem that the terms of the agreement or offer, the prior or subsequent dealings of the defendant, the efforts of the defendant to obtain the drugs and the reason for the failure to transfer all could be relevant to prove the element of intent.

Measured against the requirement of a showing of specific intent was the evidence before the grand jury sufficient to sustain the indictment? ⁴ In the case of an 'intent' crime involving physical action, proof of the performance of a physical act is itself evidence of the intention to perform...