New York Law Review

Tag: Acting in Concert

  • People v. Bello, 92 N.Y.2d 527 (1998): Establishing Accomplice Liability in Drug Sales

    People v. Bello, 92 N.Y.2d 527 (1998)

    To establish accomplice liability in a drug sale, the prosecution must prove that the defendant shared the intent to sell drugs and intentionally aided the principal in the commission of the crime, exhibiting calculated behavior that furthered the sale.

    Summary

    The New York Court of Appeals addressed whether the evidence presented to a grand jury was sufficient to indict Bello for criminal sale of a controlled substance based on an acting-in-concert theory. Bello, standing with Castellar, engaged in a brief conversation with an undercover officer seeking to buy crack cocaine. He asked how many bags she wanted and if she was a cop. Castellar then sold the officer a bag of crack cocaine. The Court of Appeals held that Bello’s actions in screening the buyer were sufficient to establish a prima facie case of accomplice liability, overturning the Supreme Court’s dismissal of the indictment and reinstating it. The court reasoned that Bello’s questions directly assisted in the sale, making him more than a mere information source.

    Facts

    An undercover officer approached Bello and Castellar and asked for “nicks” (street name for $5 bags of crack cocaine). Bello asked the officer how many she wanted and if she was a cop. Castellar then sold the officer a $10 bag of crack cocaine. Bello and Castellar were arrested shortly thereafter. The undercover officer identified both Bello and Castellar.

    Procedural History

    The Grand Jury indicted Bello and Castellar for criminal sale of a controlled substance in the third degree. Castellar pleaded guilty. Bello moved to dismiss the indictment, arguing insufficient evidence. The Supreme Court granted the motion. The Appellate Division reversed and reinstated the indictment. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the evidence presented to the Grand Jury was legally sufficient to establish that Bello acted as an accomplice in the sale of a controlled substance.

    Holding

    Yes, because the Grand Jury could have found the evidence sufficient to establish that Bello’s participation in the drug transaction intentionally and directly assisted Castellar in consummating the sale.

    Court’s Reasoning

    The Court of Appeals reasoned that to dismiss an indictment for insufficient evidence, a reviewing court must determine whether the evidence, viewed favorably to the prosecution, would warrant a conviction. The prosecution must prove that the defendant shared the intent to sell drugs and intentionally aided the principal in the commission of the crime. The key is whether the defendant intentionally and directly assisted in achieving the ultimate goal of the enterprise – the illegal sale of a narcotic drug.

    The court found that Bello’s questions (“how many” and “are you a cop”) demonstrated his knowledge of the object of the sale and his attempt to screen the potential buyer. This active screening assisted Castellar in deciding whether to make the sale. The court likened Bello’s behavior to that of individuals who “steer” buyers to sellers. The court emphasized that Bello’s presence was inextricably linked to the drug sale itself. "Defendant opened the door to potential buyers, screening them for hints as to their identity and interest; Castellar then closed the sale."

    The Court rejected the argument that Castellar’s actions in selling a different quantity from a different location negated Bello’s involvement. The Court stated that negotiations do not always follow a single path and that it would be inappropriate to restrict the Grand Jury’s ability to draw logical inferences. "It was only after defendant’s questions elicited information useful to enable Castellar to decide whether she wanted to make the sale that Castellar actually sold the crack cocaine to the undercover officer."

  • People v. Alcide, 89 N.Y.2d 961 (1997): Preserving Objections to Jury Polling

    People v. Alcide, 89 N.Y.2d 961 (1997)

    A defendant must make a specific objection or request for further inquiry during jury polling to preserve a claim that the court failed to adequately inquire into a juror’s verdict.

    Summary

    Alcide was convicted of second-degree murder and second-degree assault. During jury polling, one juror initially remained silent when asked if the verdict was hers, but eventually responded affirmatively after the court’s prompting. The defense attorney did not object to the procedure or request further inquiry. The New York Court of Appeals affirmed the conviction, holding that the defendant’s claim that the trial court failed to adequately inquire into the juror’s verdict was unpreserved for appellate review because the defense failed to object or request specific procedures during the polling process. The court also found no abuse of discretion in repeating the “acting-in-concert” instruction.

    Facts

    Alcide was tried for murder and assault stemming from an incident in Bronx County. During deliberations, the jury requested further explanation of attempted second-degree murder and second-degree assault. The court, in response, repeated its previous instruction on “acting-in-concert” liability. The jury then informed the court it had reached a verdict, finding Alcide guilty of second-degree murder and second-degree assault.

    Procedural History

    The trial court convicted Alcide of second-degree murder and second-degree assault. The Appellate Division affirmed the conviction, with two justices dissenting. A dissenting justice granted Alcide leave to appeal to the New York Court of Appeals.

    Issue(s)

    1. Whether the defendant’s claim that the trial court failed to adequately inquire into a juror’s vote during polling is preserved for appellate review when the defendant failed to object or request further inquiry during the polling process.
    2. Whether the trial court abused its discretion by including an instruction on the “acting-in-concert” theory of liability in its response to the jury’s note.

    Holding

    1. No, because the defendant failed to make a specific objection or request further inquiry when the juror was being polled, and again failed to object after the entire jury was polled.
    2. No, because there is no distinction between liability as a principal and criminal culpability as an accessory, and the prosecution pursued both lines of reasoning.

    Court’s Reasoning

    The Court of Appeals held that under CPL 310.80, a juror’s negative response during polling requires the court to refuse the verdict and direct further deliberations. While a juror’s response may raise doubts requiring resolution, a request for specific procedures to correct irregularities must be preserved for review. Here, Alcide’s counsel failed to object or request further inquiry when the juror hesitated. The court stated, “Defendant’s contention on appeal concerning a claimed failure of the trial court to make certain inquiries is unpreserved for our review.”

    Regarding the “acting-in-concert” instruction, the court stated, “Because there is ‘no distinction between liability as a principal and criminal culpability as an accessory’ and the prosecution pursued both lines of reasoning in presenting its case, the court’s repetition of its previous instructions to which defendant had not objected was consistent with ‘the substantive scope of the initial written inquiries’.” The court found no abuse of discretion.

  • People v. Rossey, 89 N.Y.2d 970 (1997): Appellate Standard of Review for Sufficiency of Circumstantial Evidence

    People v. Rossey, 89 N.Y.2d 970 (1997)

    The standard of appellate review for legal sufficiency of evidence is the same for both direct and circumstantial evidence; the evidence should be viewed in the light most favorable to the prosecution to determine if a rational trier of fact could conclude the elements of the crime were proven beyond a reasonable doubt.

    Summary

    Rossey was convicted of second-degree murder and weapons possession. The Appellate Division reversed, finding insufficient evidence of Rossey’s intent to cause the victim’s death. The Court of Appeals reversed the Appellate Division’s decision, holding that the Appellate Division applied an incorrect standard of review for circumstantial evidence. The Court of Appeals clarified that the standard for appellate review of legal sufficiency is the same for both direct and circumstantial evidence: whether, viewing the evidence favorably to the prosecution, a rational fact-finder could conclude guilt beyond a reasonable doubt. The case was remitted for factual review under the proper standard.

    Facts

    The defendant, Rossey, drove the shooter (Ocasio) and another individual to the crime scene. Rossey drove around, seemingly searching for the victim. Rossey engaged the victim in a heated verbal argument on the street. Rossey then turned and waved his arms, appearing to signal someone. At that point, Ocasio exited the car and fatally shot the victim, Guerra. Rossey then drove Ocasio away from the scene.

    Procedural History

    The defendant was convicted in the trial court of second-degree murder and criminal possession of a weapon. The Appellate Division reversed the conviction and dismissed the indictment, concluding that the evidence failed to establish beyond a reasonable doubt that the defendant acted in concert with Ocasio to intentionally cause Guerra’s death. The Court of Appeals reversed the Appellate Division’s order and remitted the case to the Appellate Division for consideration of the facts and other issues raised but not considered on the appeal to that Court.

    Issue(s)

    Whether the Appellate Division applied the correct standard when reviewing the legal sufficiency of the evidence supporting the defendant’s conviction, which was based primarily on circumstantial evidence.

    Holding

    No, because the test for appellate review on the issue of the legal sufficiency of the evidence is the same for both direct and circumstantial evidence: whether, viewing the evidence in the light most favorable to the People, a rational trier of fact could have found the elements of the crime proven beyond a reasonable doubt.

    Court’s Reasoning

    The Court of Appeals held that the Appellate Division erred in its review of the legal sufficiency of the evidence. The Appellate Division had applied a standard requiring proof beyond a reasonable doubt or to a moral certainty, and that the evidence did not exclude every “fair inference” that the defendant did not share the shooter’s intent. The Court of Appeals stated that the correct standard, applicable to both direct and circumstantial evidence, is whether, viewing the evidence in the light most favorable to the People, a rational trier of fact could conclude that the elements of the crime had been proven beyond a reasonable doubt. The court stated, “Generally, including a circumstantial evidence case, ‘the standard of [appellate] review in determining whether the evidence before the jury was legally sufficient to support a finding of guilt beyond a reasonable doubt is whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime had been proven beyond a reasonable doubt’ (People v Cabey, 85 NY2d 417, 420; see also, People v Norman, 85 NY2d 609, 620).” The court found that the evidence presented, when viewed favorably to the prosecution, was sufficient for a rational jury to conclude that the defendant was acting in concert with the shooter. Therefore, the Court of Appeals reversed and remitted the case to the Appellate Division to review the facts under the correct standard.

  • People v. Rivera, 84 N.Y.2d 766 (1995): Acting-in-Concert Theory Allowed Even When Indictment Charges Only Principal Action

    People v. Rivera, 84 N.Y.2d 766 (1995)

    A defendant indicted as a principal can be convicted based on an acting-in-concert theory, even if the indictment does not explicitly allege accessorial conduct, because there is no legal distinction between liability as a principal and criminal culpability as an accomplice.

    Summary

    Rivera was convicted of manslaughter in the first degree for the shooting death of Daniels. The indictment charged Rivera as the principal actor, making no mention of accomplices. At trial, the prosecution presented evidence suggesting Rivera acted in concert with others, and the judge instructed the jury on accessorial liability. Rivera argued this violated his right to be tried only on charges the grand jury deemed appropriate and that he lacked fair notice. The Court of Appeals affirmed the conviction, holding that introducing proof and instructing the jury on acting-in-concert when the indictment charges only principal action does not impermissibly broaden the defendant’s liability.

    Facts

    Rivera was in his apartment with Daniels and others. An argument ensued between Rivera and Daniels. A shot was fired, and Daniels exclaimed, “You shot me,” while facing Rivera, who was holding a gun. Daniels fell to the floor. Rivera and others removed Daniels from the apartment.

    Procedural History

    The grand jury indicted Rivera for second-degree murder and weapons possession. The prosecution’s pre-trial motion to amend the indictment to include an acting-in-concert theory was denied. At trial, over Rivera’s objection, the prosecution presented evidence of acting-in-concert, and the court instructed the jury on accessorial liability. The Appellate Division affirmed the conviction. Rivera appealed to the Court of Appeals.

    Issue(s)

    1. Whether the trial court erred in permitting the prosecution to pursue an accessorial liability theory at trial and in charging the jury on that theory when the indictment charged defendant only as the principal actor.

    Holding

    1. Yes, because there is no legal distinction between liability as a principal and criminal culpability as an accomplice, and the status for which the defendant is convicted has no bearing upon the theory of the prosecution.

    Court’s Reasoning

    The Court reasoned that it has traditionally been permissible to charge and admit evidence convicting a defendant as an accessory where an indictment charges only conduct as a principal. The Court cited People v. Duncan, stating, “There 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.” The court distinguished People v. Roberts, where the prosecution’s theory at trial (strangulation) differed materially from the facts alleged in the indictment (striking with a fist), prejudicing the defendant. Here, the underlying crime and the theory of liability remained consistent: Rivera caused Daniels’ death. The court noted that Penal Law § 20.00 makes a person criminally liable as a principal even if they intentionally aid another to engage in such conduct, emphasizing that “[t]he key to understanding accessorial liability is that whether one is the actual perpetrator of the offense or an accomplice is, with respect to criminal liability for the offense, irrelevant.” The Court also referenced People v. Guidice, which stated, “The People are not required to specify in an indictment whether a defendant is being charged as a principal or as an accomplice. For charging purposes, the distinction between principal and accomplice is academic”.

  • People v. Herring, 83 N.Y.2d 781 (1994): Agency Defense Requires Evidence of Relationship with Buyer

    People v. Herring, 83 N.Y.2d 781 (1994)

    A defendant is entitled to an agency charge in a drug sale case only when there is a reasonable view of the evidence to support the theory that the defendant was acting solely on behalf of the buyer; mere ambiguity regarding the defendant’s connection to the seller is insufficient.

    Summary

    Herring was convicted of criminal sale and possession of a controlled substance. He requested an agency charge, arguing he acted solely as the buyer’s agent. The trial court denied this request, but the Appellate Division reversed. The Court of Appeals reversed the Appellate Division, holding that the evidence did not support an agency charge because there was no reasonable view of the evidence suggesting Herring acted solely on behalf of the buyer. The Court emphasized the necessity of demonstrating a relationship with the buyer, not simply ambiguities in the defendant’s connection to the seller, to warrant an agency charge.

    Facts

    An undercover police officer asked Herring, a stranger, if he had drugs for sale. Herring led the officer to a storefront, took money from him, and entered the building. Inside, Herring obtained four vials of cocaine from a codefendant and gave them to the officer. Herring then left the area and was later arrested. He was subsequently charged with criminal sale and criminal possession of a controlled substance.

    Procedural History

    At trial, Herring requested the court to instruct the jury on the agency defense, arguing that he was acting solely as an agent of the buyer. The trial court denied the request. The Appellate Division reversed, finding there was a factual issue regarding agency because Herring did not solicit customers and received nothing for his participation. The Court of Appeals then reversed the Appellate Division, remitting the case for consideration of the facts.

    Issue(s)

    1. Whether the evidence presented at trial was sufficient to warrant an agency charge to the jury.

    Holding

    1. No, because there was no reasonable view of the evidence to support the theory that Herring was acting solely on behalf of the buyer.

    Court’s Reasoning

    The Court of Appeals reasoned that an agency charge is only warranted when the evidence indicates a relationship with the buyer, not merely ambiguities about the defendant’s connection to the seller. The Court found that Herring’s actions, including immediately understanding the officer’s request and leading him to a nearby drug operation, were inconsistent with acting solely as the buyer’s agent. The Court noted that even if Herring received no compensation and did not solicit the sale, this did not automatically establish agency. The Court stated, “Before an agency charge is warranted, the evidence must be indicative of a relationship with the buyer not merely raise ambiguities about the defendant’s connection to the seller.” The Court emphasized that the jury could not reasonably conclude from the evidence that Herring was acting solely as an extension of the buyer. The Court also noted that Herring was convicted on an acting-in-concert theory, and the jury’s finding of guilt on that theory necessarily precluded the possibility of agency.

  • People v. Allah, 71 N.Y.2d 830 (1988): Sufficiency of Circumstantial Evidence and Acting-in-Concert Theory

    71 N.Y.2d 830 (1988)

    A conviction based on circumstantial evidence is sufficient when the evidence, viewed as a whole, establishes guilt beyond a reasonable doubt, and the acting-in-concert theory allows a defendant to be convicted of murder as an accessory if they shared the shooter’s intent.

    Summary

    The New York Court of Appeals affirmed the defendant’s second-degree murder conviction, finding sufficient circumstantial evidence to establish guilt beyond a reasonable doubt. The evidence showed the defendant lured the victim from a social gathering to resolve a dispute, drove with the victim to a secluded location, and the victim was then shot after an argument. The court held that the jury could reasonably infer the defendant’s involvement in the planning and execution of the murder, either as the shooter or as an accessory sharing the shooter’s intent. The court also found no error in instructing the jury on the acting-in-concert theory.

    Facts

    The defendant sought out the decedent at a social gathering to resolve a dispute with the decedent’s cousin. The defendant induced the decedent to leave the gathering. The two men left with two women, and they went to the defendant’s car, where another man was waiting. After dropping off the women, the defendant and the other man drove directly to a darkened corner. There, after a witnessed argument between the decedent and one of the two men from the defendant’s car over the decedent’s “squealing”, the decedent was killed by repeated shotgun blasts fired at close range.

    Procedural History

    The defendant was convicted of second-degree murder after a jury trial. The defendant appealed the conviction. The Appellate Division affirmed the conviction. The defendant appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the circumstantial evidence presented at trial was sufficient to establish the defendant’s guilt of second-degree murder beyond a reasonable doubt.
    2. Whether the trial court properly instructed the jury that it could find the defendant guilty of murder either as an accessory or as a principal, given the uncertain identification testimony of the eyewitness.

    Holding

    1. Yes, because the defendant’s actions and the timing of the events allowed the jury to infer that the defendant participated in planning to kill the victim and shared the intent of the shooter to do so.
    2. Yes, because the indictment charged defendant with murder under an acting in concert theory and there was evidence which, if accepted by the jury, would support a finding that defendant was either the shooter or the driver of the car.

    Court’s Reasoning

    The court reasoned that the jury could infer the defendant’s involvement based on the sequence of events: the defendant seeking out the victim, inducing him to leave, driving to a secluded location, and the subsequent shooting. The court stated, “Defendant’s actions and the timing of the events of the evening permitted the jury to infer that defendant, decedent and the other man drove directly to the murder scene after dropping off the women, that the two men had a shotgun with them from the outset and that defendant must have known of it because of the difficulty of concealing it in his car.” The court further noted that the jury could consider the accessory’s presence with the shotgun during the argument. This supported the inference that the defendant either shot the decedent or participated in the planning and shared the shooter’s intent.

    Regarding the jury instruction, the court found it proper because the indictment charged the defendant with murder under an acting-in-concert theory. The court cited People v. Duncan and People v. Benzinger, emphasizing that the evidence, if accepted by the jury, could support a finding that the defendant was either the shooter or the driver of the car. This is significant as it clarifies that even with uncertain identification testimony, a conviction can stand if the evidence supports the defendant’s role as either a principal or an accessory under the acting-in-concert doctrine. This decision reinforces the permissibility of circumstantial evidence in establishing guilt, particularly when combined with the acting-in-concert theory, allowing prosecutors to pursue convictions even when direct evidence of the defendant’s role is limited.

  • People v. Jackson, 39 N.Y.2d 64 (1976): Admissibility of Uncharged Crimes to Show Concert of Action

    People v. Jackson, 39 N.Y.2d 64 (1976)

    Evidence of prior uncharged criminal conduct is admissible to prove the specific crime charged when it tends to establish a common scheme or plan, including demonstrating that defendants were acting in concert.

    Summary

    The New York Court of Appeals addressed the admissibility of testimony regarding prior uncharged narcotics sales to prove that the defendant and another individual were acting in concert. Police officers observed the defendant and an accomplice engaging in what appeared to be drug sales, with the defendant handling money and signaling to the accomplice, who then provided drugs to the buyers. The court held that testimony regarding the uncharged sales was admissible to demonstrate the connection between the defendant and the accomplice, and that its probative value outweighed any potential prejudice to the defendant.

    Facts

    Police officers, from an observation post, surveilled the sidewalk in front of 305 and 307 West 127th Street. Officer Hart observed Kelly Jackson (the appellant) arrive with Stephanie Watson. Watson sat on a stoop while Jackson stood nearby. Hart witnessed an unidentified man approach Jackson, give him money, and Jackson then pointed two fingers at Watson. The man received glassine envelopes from Watson. This occurred twice. Later, Kenneth Williams approached Jackson and gave him money. Hart observed Jackson signal Watson (though his testimony was inconsistent regarding which hand he used). Williams then received a glassine envelope from Watson and was later arrested with the envelope in his possession. Jackson and Watson were also arrested.

    Procedural History

    The defendant was convicted of drug-related offenses. He appealed, arguing that the testimony regarding prior uncharged narcotics sales was improperly admitted. The Appellate Division affirmed the conviction. The defendant then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the trial court erred in admitting testimony regarding prior uncharged narcotics sales to demonstrate that the defendant and Stephanie Watson were acting in concert.

    Holding

    No, because the evidence was relevant to show a common scheme or plan between the defendant and his accomplice, and its probative value outweighed any potential prejudice to the defendant.

    Court’s Reasoning

    The Court of Appeals acknowledged the general rule that evidence of unconnected, uncharged criminal conduct is inadmissible to establish a predisposition to commit the crime charged. However, the Court emphasized that such evidence is admissible if offered for a relevant purpose other than to establish criminal propensity. The Court cited People v. Molineux, stating that evidence of other crimes is competent to prove the specific crime charged when it tends to establish: “(1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.” Although “acting in concert” is not explicitly one of the Molineux exceptions, the court noted that those categories are merely illustrative, not exclusive. The court reasoned that the testimony regarding the uncharged sales was relevant to demonstrate the connection between Jackson and Watson, as Jackson handled the cash and Watson delivered the drugs upon a signal from Jackson. The court concluded that the probative value of this testimony outweighed any potential prejudice to the defendant. The court also rejected the defendant’s other objections, including the introduction of photographs and the denial of a jury view of the scene, finding no reversible error.