People v. Moses

• Decision Date: 01 February 2002
• Docket Number: 4,01-01470
• Parties: PEOPLE OF THE STATE OF NEW YORK,, v RICHARD MOSES,KA 01-01470 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT Decided on
• Court: New York Supreme Court — Appellate Division

PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT v RICHARD MOSES, DEFENDANT-APPELLANT

KA 01-01470

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT

Decided on February 1, 2002

CERULLI, MASSARE & LEMBKE, ROCHESTER (MATTHEW R. LEMBKE OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH, FOR PLAINTIFF-RESPONDENT.

MEMORANDUM AND ORDER

PRESENT: PIGOTT, JR., P. J., WISNER, HURLBUTT, KEHOE, AND GORSKI, JJ.

Appeal from a judgment of Steuben County Court (Furfure, J.), entered August 10, 1999, convicting defendant after a jury trial of conspiracy in the second degree.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

Defendant appeals from a judgment convicting him of conspiracy in the second degree (Penal Law § 105.15) and sentencing him to an indeterminate term of incarceration of 4 to 12 years. We reject defendant's contention that the evidence is legally insufficient to support the conviction (see, People v Gray [appeal No. 2], 284 A.D.2d 1012; People v Rivera, 281 A.D.2d 927,928, lv denied 96 N.Y.2d 906; People v Adams, 185 A.D.2d 680, lv denied 80 N.Y.2d 926; see also, People v Crossley, 168 A.D.2d 930; People v Blase, 112 A.D.2d 943, 944, lv denied 66 N.Y.2d 761). Defendant's monetary contribution towards the co-conspirators' purchase of the drugs satisfies the overt act requirement. Moreover, defendant's knowledge and agreement that more than four ounces of cocaine would be possessed is inferable from the co-conspirators' actual purchase of 10 ounces and the expectation of defendant that he would receive one or two ounces in exchange for his relatively minor contribution of $900 to $1,300 out of a total anticipated purchase price of at least $7,000.

Defendant's reliance on the Court of Appeals' decisions in People v Allen (92 N.Y.2d 378) and People v Manini (79 N.Y.2d 561) is misplaced. Neither of those cases concerns a buyer's culpability for conspiracy. The conspiracy article, unlike the accomplice liability and solicitation articles, contains no exemption such as those codified in Penal Law §§ 20.10 and 100.20 and treated by the Court of Appeals in Allen and Manini, respectively. Manini endorses a prosecution for conspiracy under these circumstances (see, People v Manini, supra, at 566, n 2, 571-572). Moreover, in our recent decision in Gray (supra), which factually is closely analogous to this case, we approved the prosecution of a drug buyer for conspiring to bring about the commission of a crime of criminal possession of a controlled substance by a "mule" employed by a drug supplier (see, People v Gray, supra, at...