Criminal Court of the City of New York, New York County
September 27, 2013
The People of the State of New York, Plaintiff,
Larry Ramirez, Defendant.
Assistant District Attorney Shilpa Kalra
Lawrence A. Omansky, Esq.
ERIKA M. EDWARDS, J.
The defendant, Larry Ramirez, is charged with violating PL §205.30 (Resisting Arrest); and PL §221.40 (Criminal Sale of Marihuana in the Fourth Degree). Defendant now moves by omnibus motion filed on July 18, 2013, for an order dismissing both counts of the accusatory instrument as facially insufficient pursuant CPL §§100.40, 170.30(1)(a) and 170.35(1), as well as other relief. The court directed the People to file and serve their response to defendant's motion by August 22, 2013. To date, the People have failed to file and serve any opposition to defendant's motion. However, the court will address the issues on the merits.
As set forth below, defendant's motion to dismiss for facial insufficiency is granted in part as to the charge of Criminal Sale of Marihuana in the Fourth Degree and denied in part as to the Resisting Arrest count; defendant's request for a Bill of Particulars is denied; defendant's request for additional discovery is granted to the extent that the People are required to file and serve a Voluntary Disclosure Form on or before October 15, 2013; defendant's motion to suppress any prior conviction and bad acts is reserved for the trial court; and the court grants Huntley/Wade/Dunaway hearings to determine the outcome of defendant's motion to suppress defendant's post-arrest statement(s) and identification testimony.
MOTION TO DISMISS FOR FACIAL INSUFFICIENCY
A defendant may, at any time, properly raise a claim of facial insufficiency resulting from a failure to allege a necessary element and such defect is jurisdictional, non-waivable and may even be raised on appeal (People v Casey, 95 N.Y.2d 354, 364 ).
A valid accusatory instrument must include a factual portion containing a complainant's statement "alleging facts of an evidentiary character supporting or tending to support the charges" (CPL §100.15). Each count of a misdemeanor complaint is sufficient on its face when it "substantially conforms" to the requirements set forth in CPL §100.15 and the allegations in the factual portion of the accusatory instrument and/or any supporting deposition(s) "provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument" (CPL §100.40[a] and [b] and People v Dumas, 68 N.Y.2d 729, 731 ).
Furthermore, a valid criminal court information must contain non-hearsay factual allegations in the complaint and/or any supporting deposition(s), which, if true, establish "every element of the offense charged and the defendant's commission thereof" (CPL §100.40[c]). The non-hearsay factual allegations must be sufficient to establish a prima facie case, however such standard does not require the same level of corroboration needed at trial or in grand jury proceedings (People v Suber, 19 N.Y.3d 247, 252-54 ).
A conclusory allegation that a defendant committed each and every element of a crime, standing alone, does not meet the reasonable cause requirement (People v Kalin, 12 N.Y.3d 225, 229 ). The information must also set forth the individual's basis of knowledge to support the factual allegation (id.). That other innocent inferences could possibly be drawn from the facts is irrelevant to this inquiry at the pleading stage (People v Deegan, 69 N.Y.2d 976, 979 ).
In reviewing an accusatory instrument for facial sufficiency, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense..., " the court should give it "a fair and not overly restrictive or technical reading" (Casey, 95 N.Y.2d at 360). At the pleading stage, all that is needed is that the factual allegations are sufficiently evidentiary in character and tend to support the charges (People v Allen, 92 N.Y.2d 378, 385 ).
The factual allegations set forth in the complaint state in substance that Detective Franklyn Sepulveda was informed by undercover Police Officer 00229, that on June 13, 2013, at 6:18 p.m. at 600 West 161st Street, New York, New York, Miguel Alejo (a separately-charged individual) gave the undercover officer a plastic bag of marihuana in exchange for money. Detective Sepulveda was informed by Detective Angel Daliz that Detective Daliz examined the contents of the plastic bag and believed it contained marihuana based upon his training, experience and observation of the packaging. Additionally, Detective Sepulveda was informed by Sergeant Kevin Goggin that Sergeant Goggin observed Miguel Alejo "hand this defendant money as a part of the above-mentioned transaction "with the undercover officer (emphasis added).
Thereafter, as Detective Sepulveda attempted to place the defendant under arrest, the defendant ran away from the detective for approximately 1 ½ city blocks and refused to be handcuffed. As a result of the defendant's actions in avoiding arrest, Detective Sepulveda fell to the ground and sustained injuries to his forehead and knee.
The People filed and served supporting depositions from Undercover 00229, Detective Daliz, and Sergeant Goggin to convert the complaint to an information.
In defendant's motion papers, he argues in substance that the information is facially insufficient because it fails to make out a prima facie showing that the defendant committed the crimes charged against him. Defendant alleges in substance that he was simply walking down the street when he saw his friend, Miguel Alejo, the separately-charged individual. Defendant asked his friend if he could buy three cigarettes from him and his friend agreed to sell them to him. Defendant handed his friend $3.00 in exchange for three cigarettes. As defendant walked away, the police stopped him and arrested him. Defendant denies being a part of any marijuana sale. He argued in substance that the police officer who stopped him was not in uniform, so defendant did not know he was a police officer and defendant ran away because he thought the individual was going to rob him.
For the reasons set forth below, the court grants defendant's motion to dismiss the Criminal Sale of Marihuana in the Fourth Degree count, but denies defendant's motion to dismiss the Resisting Arrest count. The court finds that the factual allegations used to describe defendant's participation in the marihuana sale were conclusory and insufficient to establish defendant's knowledge of the sale, nor his intent to commit an overt act to assist the separately-charged individual to commit the sale of marihuana to the undercover police officer.
Notwithstanding the dismissal of the underlying sale count, the court finds that the factual allegations set forth in the information support the Resisting Arrest count, as defendant attempted to resist an authorized arrest. The arresting detective believed he had probable cause to arrest the defendant and he was entitled to rely upon the information provided to him by his fellow police officers who had first-hand knowledge of the sale and defendant's involvement with such sale. In this case, the Resisting Arrest count may stand alone as defendant's sole charge even though the information did not contain non-conclusory factual allegations sufficient to support defendant's underlying marihuana sale count.
Criminal Sale of Marihuana in the Fourth Degree
Pursuant to PL §221.40, a person is guilty of Criminal Sale of Marihuana in the Fourth Degree when "he knowingly and unlawfully sells marihuana..." (PL §221.40). The term to "sell" means "to sell, exchange, give or dispose of to another, or to offer or agree to do the same" (PL §220.00). Defendant is charged with selling marihuana under a theory that he acted in concert with the separately-charged defendant.
A person is held criminally liable for the conduct of another which constitutes an offense "when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct" (PL §20.00).
If the accusatory instrument does not include facts which may reasonably be inferred that the defendant acted as the principal in an alleged marihuana sale, then the court must consider whether it can reasonably be inferred that the defendant's alleged conduct constitutes a marihuana sale under a theory of accomplice liability or acting-in-concert (see People v Kaplan, 76 N.Y.2d 140, 144-45 ).
The People must demonstrate that the defendant shared the requisite mental culpability as the principal and aided the principal in achieving the ultimate goal of committing the offense (id.). Specifically, the issue is whether the alleged facts establish that defendant "exhibited any calculated or direct behavior that purposefully affected or furthered the sale (People v Bello, 92 N.Y.2d 523, 526 ). The key factor in this analysis is "whether a defendant intentionally and directly assisted in achieving the ultimate goal of the enterprise—the illegal sale of a narcotic drug, " or sale of marihuana in the instant matter (id.).
Therefore, to charge defendant as an accomplice to the marihuana sale to the undercover officer, the People must establish that the defendant shared the requisite mental state of knowingly and unlawfully selling marihuana to the undercover officer by soliciting, requesting, commanding, importuning, or intentionally aiding the separately-charged individual to commit that sale (see People v Hibbert, 282 A.D.2d 365, 366 [1st Dept 2001]). Thus, at a minimum, accomplice liability requires "awareness of the proscribed conduct and some overt act in furtherance" of such conduct (id.).
It is irrelevant as to whether a defendant is alleged to have been the actual person who engaged in the direct hand-to-hand with the undercover officer, or whether he is alleged to have been liable as an accessory to the crime as "[t]here is no distinction between liability as a principal and criminal culpability as an accessory and the status for which the defendant is convicted has no bearing upon the theory of the prosecution" (People v Duncan, 46 A.D.2d 74 ).
Courts have long held that a person's mere presence, even with awareness of the crime occurring, is insufficient to establish accomplice liability (People v Yarrell, 75 N.Y.2d 828, 828 ).
Furthermore, courts have declined to find accomplice liability in cases where there were insufficient factual allegations to establish a defendant's shared mental culpability coupled with the commission of an overt act to assist another to commit the sale (see Hibbert, 282 A.D.2d 365 [no accomplice liability found where a separately-charged individual sold drugs to an undercover police officer and more than ½ hour later, the seller gave the sale proceeds to the defendant and the pre-recorded buy money was recovered from the defendant]; People v Hatchett, 196 Misc.2d 892, 892 [Crim Ct NY County 2003] [no accomplice liability found where defendant held open a door for an individual who walked inside of a building and purchased marihuana from another individual inside of the doorway and $45.00 was recovered from the defendant]; and People v Custodro, 2009 NY Slip Op 32437(U) [no accomplice liability found when defendant was observed looking up and down the street, while standing next to and engaging in conversation with a separately-charged seller, as the separately-charged seller sold marihuana to an apprehended buyer and defendant and the separately-charged seller both possessed small quantities of marihuana].
Merely accepting marihuana sale proceeds from a seller is not enough to hold a defendant responsible for the sale as an accomplice to such sale. There must be additional facts alleged to demonstrate defendant's awareness of the sale and commission of an overt act in furtherance of the sale (see People v Carter, 77 N.Y.2d 95  [conviction upheld as an accomplice where defendant was observed standing about 10 feet away from the seller during a drug sale to an apprehended buyer, and once the buyer walked away immediately after the transaction, the seller gave the money from the sale to the defendant, also defendant and the seller repeated the same conduct during several subsequent transactions]; and People v Williams, 79 N.Y.2d 803  [conviction upheld where defendant was observed a short distance away from a separately-charged seller during a drug sale to an undercover police officer, he engaged in conversation with the seller, continually looked up and down the block, he received the proceeds of the drug sale and was found in possession of the pre-recorded buy money shortly after the sale].
In reviewing the facial sufficiency of the information in the instant matter, the factual allegations set forth in the information fail to establish that the defendant acted in concert with the separately-charged individual to sell marihuana to the undercover police officer.
The information merely alleges that defendant's sole role in the offense was that he accepted money from the separately-charged individual "as a part of the above-mentioned transaction" with the undercover officer. The phrase "as part of" the marihuana sale is conclusory, vague and ambiguous. It fails to provide sufficient details to establish how defendant assisted with the actual sale. Such phrase is insufficient to establish that defendant shared the requisite mental state of knowingly and unlawfully selling marihuana to the undercover officer, nor that he assisted the separately-charged individual by soliciting, requesting, commanding, importuning, or intentionally aiding him to commit the marihuana sale.
It is clear that more than one individual may play various roles in effecting a marihuana sale, including, but not limited to the following: acting as a "look out" who watches out for and warns co-conspirators of the arrival of law enforcement officers; a "steerer" who directs potential buyers to a particular seller; a "screener" who attempts to determine whether the potential buyer is an undercover police officer or cooperator and sometimes who determines the type and quantity of marihuana the potential buyer wishes to purchase; a "hand-to-hand" who is the street-level dealer, a "supplier" who provides the marihuana for sale; a "bagger" who packages larger quantities of marihuana into smaller quantities for street-level sales; a "manager/supervisor" whose role could include authorizing the sale to particular buyers, monitoring the location to make sure the sales run as smoothly as possible, collecting the money from the street-level dealers, distributing additional marihuana when necessary, assigning shifts, as well as other possible responsibilities; a "stashman" who safeguards and distributes additional quantities of marihuana to the street-level dealers when necessary; a "money man" who collects and safeguards the proceeds of the marihuana sales and the "enforcer/security" who protects the co-conspirators from being attacked or robbed of their marihuana and/or proceeds; and there could be many other potential roles in any given sale of marihuana or narcotics.
Based upon the factual allegations set forth in the information, it can only be implied that defendant's alleged role in the sale was that of a "money man." There are no allegations in the information that defendant possessed any marihuana, pre-recorded buy money, nor any additional money. As such, defendant is not alleged to have committed any act for which one could reasonably infer that he acted as a "look out, " "steerer, " "screener, " "stashman, " "manager/supervisor, " nor any other role, besides being a "money man." However, such factual allegations are insufficient to establish this role. There are no allegations that defendant was observed in close proximity to the seller, nor the undercover at any time prior to, nor during the sale. There is not even any allegation that defendant was even present in the area during the sale.
Therefore, it cannot reasonably be inferred that defendant had knowledge of the sale and that he took the money in furtherance of the sale with the requisite shared intent to commit the sale. Additionally, there is no information as to whether defendant accepted the sale proceeds immediately after the sale or after a period of time had elapsed. There is no information regarding whether the defendant accepted the proceeds while in close proximity to the location of the transaction or at a separate location. At no time was it alleged that defendant engaged in a drug-related conversation with the seller, nor the undercover. Finally, since the sergeant advised the detective of the defendant's alleged involvement with the sale and not the undercover officer, it can reasonably be inferred that the undercover officer did not observe defendant having any role in the transaction and that defendant accepted the money at some point after the undercover officer had left the scene upon the completion of the sale.
As such, there are simply no non-conclusory allegations to infer that the defendant was aware of the sale and that he directed, assisted, requested, nor did anything to assist the separately-charged individual to commit the sale.
The act of accepting the proceeds of a marihuana sale, without more, does not rise to the level of an overt act in furtherance of the marihuana sale, nor could it be inferred that the defendant shared the same criminal intent as the separately-charged individual who did the hand-to-hand with the undercover police officer.
In conclusion, there are insufficient factual allegations to establish that defendant shared the requisite mental state of knowingly and unlawfully selling marihuana to the undercover officer by soliciting, requesting, commanding, importuning, nor that he intentionally aided the separately charged individual to commit the sale, as required by PL §20.00 and the relevant case law.
Thus, the factual allegations in the complaint do not support each element of the charge of Criminal Sale of Marihuana in the Fourth Degree and defendant's motion to dismiss this charge is granted.
Pursuant to PL §205.30, a person is guilty of Resisting Arrest "when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person" (PL §205.30).
A key element of Resisting Arrest is the existence of an authorized arrest, including a finding that the arrest was premised on probable cause (see People v Jensen, 86 N.Y.2d 248, 253 ).
In the present case, after being informed by undercover Police Officer 00229 in substance that a marihuana sale occurred and by Sergeant Goggin in substance that the defendant participated in the sale, Detective Sepulveda attempted to arrest the defendant for the sale. It is unclear how much Detective Sepulveda knew about the extent of defendant's involvement in the sale prior to arresting defendant, and how much he learned after defendant's arrest, but prior to the drafting of the complaint. Detective Sepulveda relied upon the information provided by his fellow officers and he believed he had probable cause to arrest the defendant for the marihuana sale. When he tried to do so, defendant ran away from the Detective for 1 ½ blocks and defendant refused to be handcuffed. As a result of the defendant's actions, Detective Sepulveda fell to the ground and sustained injuries to his forehead and knee.
When considering defendant's alleged conduct based upon the totality of the circumstances, this court determines that defendant's arrest was authorized as it was premised upon probable cause. Additionally, although the term "refused to be handcuffed" may be considered conclusory, when considered in the totality of the circumstances, the defendant's actions of running away from the detective and refusing to be handcuffed, causing the detective to fall down and sustain injuries is sufficient to support each element of the resisting arrest charge.
Additionally, based upon the facts of this case, the Resisting Arrest count may stand alone as defendant's sole charge even though the court dismisses the underlying Criminal Sale of Marihuana in the Fourth Degree charge because of the People's failure to include non-conclusory factual allegations in the information sufficient to support defendant's underlying marihuana sale count.
Based upon these factual allegations, the accusatory instrument establishes a prima facie case for each element of the charge of Resisting Arrest, pursuant to PL §205.30.
As such, defendant's motion to dismiss this charge is denied.
DEMAND FOR A BILL OF PARTICULARS AND ADDITIONAL DISCOVERY
Defendant's motion for a bill of particulars is denied. Defendant's motion for additional discovery in granted to the extent the People must file and serve a Voluntary Disclosure Form (VDF) on or before October 15, 2013.
Defendant's motion to preclude evidence at trial of defendant's prior convictions or bad acts is reserved for the trial court.
The court grants Huntley/Wade/Dunaway hearings to determine the outcome of defendant's motion to suppress evidence of defendant's post-arrest statement(s) made to law enforcement officials and testimony regarding defendant's identification. There does not appear to have been any property recovered from the defendant to warrant a Mapp hearing.
RESERVATION OF RIGHTS
Any additional, supplemental, or amended motions contemplated by the defendant shall be permitted only to the extent that such motions fall within the scope of CPL §255.20(2) and (3).
The People are reminded of their continuing obligation to supply Brady and Rosario material.
To the extent not addressed herein, the remainder of defendant's motions are denied.
This opinion shall constitute the decision and order of the Court.