People v. Flores, 84 N.Y.2d 951 (1994)

A defendant’s failure to raise a specific argument for dismissal at trial, such as the lack of evidence of a bona fide offer to sell drugs, forfeits the right to raise that argument on appeal; furthermore, a defendant is not entitled to a jury charge on a lesser included offense unless there is a reasonable view of the evidence to support a finding that the elements of the greater offense were not met.

Summary

The defendant was convicted on multiple counts of criminal sale of a controlled substance. The charges stemmed from a completed sale and two separate offers to sell cocaine to an undercover officer. The Appellate Division reduced some convictions due to a lack of independent weight evidence. On appeal to the New York Court of Appeals, the defendant argued that the convictions based on the offers should be reversed because the prosecution failed to prove that the offers were bona fide. He also argued he was entitled to a jury charge on a lesser-included offense for the completed sale. The Court of Appeals affirmed, holding that the defendant’s argument regarding the offers was not preserved for appeal and that no reasonable view of the evidence supported a lesser-included offense charge.

Facts

On March 28, 1990, the defendant sold over four ounces of cocaine to an undercover police officer for $3,700. On April 5, 1990, and May 23, 1990, the defendant offered to sell specific quantities of cocaine to the same undercover officer for agreed-upon prices; however, no exchange of money or drugs occurred on either of these latter occasions.

Procedural History

The defendant was indicted on five counts, including criminal sale in the first degree for the April 5 transaction and criminal sale in the second degree for the May 23 transaction. He was convicted on two counts of criminal sale of a controlled substance in the first degree (March 28 and April 5 transactions) and one count of criminal sale of a controlled substance in the second degree (May 23 transaction). The Appellate Division modified the judgment, reducing the April 5 and May 23 convictions to criminal sale in the third degree because there was no independent evidence of the drugs’ weight offered for sale. The defendant then appealed to the Court of Appeals.

Issue(s)

1. Whether the defendant’s argument that the prosecution failed to prove a knowing sale (i.e., bona fide offers) for the April 5 and May 23 transactions was preserved for appellate review, given that the argument raised at trial was that there were no consummated sales.
2. Whether the trial court erred in refusing to charge the jury on the lesser included offense of criminal sale of a controlled substance in the third degree for the March 28 transaction.

Holding

1. No, because the argument now raised on appeal (lack of evidence of a bona fide offer to sell) was not the ground for dismissal argued at trial.
2. No, because there was no reasonable view of the evidence that could support a finding that the weight of the drugs was less than two ounces, which is a necessary element for the lesser included offense.

Court’s Reasoning

Regarding the unpreserved argument, the Court noted the defendant argued at trial only that the People had not proven consummated sales. The Court reasoned that this argument was inconsistent with the argument now raised on appeal. The Court stated, “If, as defendant now asserts, the evidence was insufficient to demonstrate the mens rea element for criminal sale, it also would have been insufficient to sustain a conviction for attempt…” Because the defendant did not raise the issue of mens rea at trial, the Court deemed it unpreserved and thus not reviewable on appeal.

Regarding the lesser included offense charge, the Court applied CPL 300.50 (1), (2) noting that a defendant is only entitled to a charge on a lesser included offense if there is a reasonable view of the evidence which could support a finding that the weight of the drugs was less than two ounces. The forensic evidence and the undercover officer’s testimony indicated that the cocaine sold on March 28 weighed over four ounces. Because there was no evidence to suggest a weight less than two ounces, the Court concluded that the defendant was not entitled to a charge on the lesser included offense.