People v. Rosencrants
| Citation | 392 N.Y.S.2d 808,89 Misc.2d 721 |
| Parties | The PEOPLE of the State of New York v. Gerald Wayne ROSENCRANTS. |
| Decision Date | 10 March 1977 |
| Court | New York County Court |
Motion by defendant to inspect the Grand Jury minutes pursuant to section 210.30 of the Criminal Procedure Law and for a further order of the Court dismissing the indictment upon the grounds that the evidence submitted to the Grand Jury was not legally sufficient to support the charge against the defendant, to wit: attempted sale of a controlled substance in the third degree in violation of sections 110.00 and 220.39, subdivision 7 of the Penal Law. The first part of defendant's motion is granted. After examining the Grand Jury minutes, this Court finds that the evidence adduced before the Grand Jury was sufficient to support the indictment within the meaning of Criminal Procedure Law section 190.65, subdivision 1 and so denies defendant's motion to dismiss.
The facts of this case are as follows: During the evening of August 19, 1976, in the City of Binghamton, Broome County, New York the defendant sold, to another, a substance which appeared to be a white powder for the sum of $175.00. As indicated in the defendant's statement to the police, the defendant believed at the time of the sale that the substance which he sold contained 'speed' or methamphetamine, a controlled substance under Article 220 of the Penal Law and Article 33 of the Public Health Law.
A subsequent analysis of the powder sold proved that it was, in fact, ephedrine, which is not a controlled substance in this State.
The resolution of this motion involves an interpretation of sections 110.00 and 110.10 of the Penal Law.
Taken together, these two sections provide that a person may be charged with an attempt to commit a crime when, with intent to commit that crime, he engages in conduct which tends to effect its commission; even though under the attendant circumstances as the defendant believed them to be, the crime was impossible of commission.
These sections of our Penal Law seek to clarify a subject upon which the former Penal Law was silent; namely, can one 'attempt' to commit a crime which, by virtue of certain circumstances, is Impossible of actual commission.
'Impossibility' according to prior case law was of two kinds: factual and legal. Illustrative of factual impossibility is an attempted larceny case based upon an attempt to pick a pocket which is in fact empty (see Commission Staff Notes to the Proposed Penal Law § 110.10, Gilbert Criminal Law and Procedure (1974) p. 2A--133). An example of legal impossibility is a 'receiving' case based upon the acquisition of property which one believes to be stolen but which actually is not (People v. Jaffe, 185 N.Y. 497, 78 N.E. 169). Case law failed to distinguish between these two types of 'impossibility' resulting in confusion among the courts. However, the general rule appeared to be as follows: factual impossibility did not constitute a defense to a prosecution for attempt, but legal impossibility did (People v. Rollino, 37 Misc.2d 14, 233 N.Y.S.2d 580).
The present law (Penal Law § 110.10) alters prior law by Denying the defense of both legal and factual impossibility on the theory that neither detracts from the offender's culpability (see Practice Commentary to Penal Law § 110.10, Book 39, McKinney's Consolidated Laws of New York).
Thus to answer the question of whether a person has made an attempt to commit a crime requires a focusing upon the mind and intent of the actor and not upon the result of the act (People v. Bauer, 32 A.D.2d 463, 305 N.Y.S.2d 42, Aff'd 26...
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People v. Williams
...1981) cert. den. 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852, People v. Ettman, 99 Misc.2d 120, 415 N.Y.S.2d 599, People v. Rosencrants, 89 Misc.2d 721, 392 N.Y.S.2d 721, and People v. Vandercook, 99 Misc.2d 876, 417 N.Y.S.2d 447. See 85 A.L.R.2d An example of a case of "premature arrest" ......
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People v. Davis
...hay fever medicine. To the extent that it repudiates the prosecution on the theory of an attempt, it is at odds with People v. Rosencrants, 89 Misc.2d 721, 392 N.Y.S.2d 808, in which an attempted sale theory was upheld when the powder, represented to be methamphetamine, turned out to be non......
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State v. Davidson
...eroded, even in New York. See also People v. Bel Air Equip. Corp., 46 A.D.2d 773, 360 N.Y.S.2d 465 (1974); People v. Rosencrants, 89 Misc.2d 721, 392 N.Y.S.2d 808 (1977). RCW 9A.28.020(2) is substantially identical to the New York statute and is consistent with the modern trend in the law o......
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People v. Sessions
...knew that powder in question was aspirin, he could be prosecuted for attempted sale of controlled substance]; People v. Rosencrants, 89 Misc.2d 721, 392 N.Y.S.2d 808 [defendant indicated in his statement to police that he believed at time of sale that substance which he sold contained "spee......