New York Law Review

Tag: Criminal Sale

  • People v. Davis, 14 N.Y.3d 20 (2009): When Criminal Possession is Not a Lesser Included Offense of Criminal Sale

    14 N.Y.3d 20 (2009)

    Criminal possession of a controlled substance is not a lesser included offense of criminal sale of a controlled substance under New York law, even when an agency defense is presented, because it is theoretically possible to commit the sale crime without necessarily committing the possession crime.

    Summary

    George Davis was convicted of criminal sale of a controlled substance. At trial, he requested a jury instruction on the agency defense (arguing he acted as the buyer’s agent) and also requested that the court charge criminal possession as a lesser included offense. The trial court granted the agency defense instruction but denied the lesser included offense charge. The New York Court of Appeals affirmed the conviction, holding that criminal possession is not a lesser included offense of criminal sale, even when the agency defense is raised, because the theoretical possibility exists to sell without possessing. This decision emphasizes a strict application of the ‘impossibility’ test for lesser included offenses.

    Facts

    An undercover officer approached Davis outside a building known for drug sales, requesting two bags of crack cocaine and providing $60. Davis entered the building, returned, and handed the officer the drugs. At trial, Davis testified that the officer solicited his help in purchasing crack, promising to “look out for” him. Davis claimed he led the officer to the building, took $40, purchased the crack inside, and gave it to the officer, receiving no payment for his services. He argued he was merely acting as an agent for the buyer.

    Procedural History

    Davis was indicted for criminal sale of a controlled substance in the third degree. At trial, he requested and received an agency defense instruction. He also requested a charge for criminal possession of a controlled substance as a lesser included offense, which was denied. He was convicted. The Appellate Division affirmed. The Court of Appeals granted leave to appeal and affirmed the Appellate Division’s ruling.

    Issue(s)

    Whether the trial court erred in refusing to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal sale of a controlled substance in the third degree, when an agency defense was properly submitted to the jury.

    Holding

    No, because it is theoretically possible to commit the crime of criminal sale of a controlled substance without, by the same conduct, committing the crime of criminal possession of a controlled substance. The agency defense does not alter this analysis.

    Court’s Reasoning

    The Court of Appeals relied on the two-pronged test established in People v. Glover to determine whether a defendant is entitled to a lesser included offense charge. The first prong requires that it be theoretically impossible to commit the greater crime without committing the lesser. The Court emphasized that this determination is made by a “comparative examination of the statutes defining the two crimes, in the abstract” (Glover). Here, the court reasoned that one can “offer or agree to” sell drugs without having physical possession or control over them. The court dismissed the argument that the agency defense changes this analysis. The agency defense is an interpretation of the definition of “sell.” The Court stated, “Although ‘[r]eading the statute literally, any passing of drugs from one person to another would constitute a sale,’ we have held that ‘[o]ne who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics’.” Because the agency defense is still a defense to sale, the Court reasoned that the Glover test remains applicable and an exception to the test is not warranted. As such, the Court affirmed the lower court’s conclusion. The dissenting opinion argued for an exception to the Glover test when the agency defense is invoked. The dissent contended that because a defendant asserting the agency defense essentially admits to possessing the drugs on behalf of the buyer, a charge of simple possession should be included to avoid coercing the jury into either acquitting a defendant who admits to criminal conduct or convicting them of a greater crime.

  • People v. Mike, 92 N.Y.2d 996 (1998): Proximity Required for Attempt of Criminal Sale

    People v. Mike, 92 N.Y.2d 996 (1998)

    To be guilty of attempted criminal sale of a controlled substance, a defendant’s actions must come dangerously near completion of the sale, and be so near that there is a very high likelihood that the crime would have been completed except for some unforeseen intervention.

    Summary

    Defendant Mike was convicted of attempted criminal sale of a controlled substance. The deal fell apart when the buyer, an undercover officer, refused to front the money. The Appellate Division modified the judgment, reducing the conviction to attempted criminal sale. The New York Court of Appeals reversed, holding that the defendant’s actions did not come close enough to completing the sale to constitute an attempt. The Court emphasized that the defendant’s actions must be in dangerous proximity to the completed crime.

    Facts

    An undercover officer arranged to purchase cocaine from the defendant. The defendant stated his intent to arrange the acquisition of cocaine. The deal failed because the undercover officer refused to provide upfront money for the purchase.

    Procedural History

    The defendant was convicted after a bench trial of attempted criminal sale of a controlled substance. The Appellate Division modified the judgment by reducing the conviction. The Court of Appeals reversed the Appellate Division’s order and reinstated the original conviction of attempt.

    Issue(s)

    Whether the defendant’s actions came dangerously near completion of the sale and thus constituted attempted criminal sale of a controlled substance.

    Holding

    No, because the defendant’s actions did not come dangerously near completion of the sale, and the circumstances were such that there was not a high likelihood that the crime would have been completed except for some unforeseen intervention.

    Court’s Reasoning

    The Court reasoned that an attempt to commit a crime requires that the defendant has “engaged in conduct which tends to effect the commission of such crime”. The Court cited People v. Warren, 66 N.Y.2d 831 (1985). The Court stated, “We have consistently held that to constitute an attempt, the defendant’s conduct must have come ‘dangerously near’ commission of the completed crime”. The Court found that the evidence had to establish that defendant’s actions were “so near to the accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference.” The Court found that the transaction here did not progress to the point where completion of the sale was “assured or practically certain”, because several aspects of the sale remained unresolved. The buyer had refused to front the money and the quantity of the drugs had not been decided. Because of these uncertainties, the Court found the defendant’s actions insufficient to support a conviction for attempt. Judge Bellacosa dissented, stating that the defendant’s admission and the circumstances leading up to the failed deal were sufficient to sustain the charge.

  • People v. Johnson, 45 N.Y.2d 546 (1978): Jury Instructions on Lesser Included Offenses

    45 N.Y.2d 546 (1978)

    A trial court must instruct the jury on a lesser included offense if there is a reasonable view of the evidence that would support a finding that the defendant committed the lesser offense but not the greater offense, and a party requests the charge.

    Summary

    William Johnson was convicted of criminal sale of a controlled substance in the third degree. The New York Court of Appeals reversed, holding that the trial court erred in refusing to submit to the jury the lesser included offense of criminal possession of a controlled substance in the seventh degree. The Court reasoned that because the jury was free to accept or reject any part of the evidence presented, they could have reasonably found Johnson guilty of possession but not sale. This ruling reinforces the principle that juries must be given the option to convict on lesser charges when the evidence reasonably supports it, ensuring a fair trial and preventing potential overreach by the prosecution.

    Facts

    A confidential informant, working with a State Police Investigator, asked William Jackson if he knew anyone with drugs. Jackson directed them to Johnson. Jackson told Johnson the informant wanted to buy “a bundle” of heroin. Johnson agreed to supply the drugs and arranged a meeting. At the meeting, the investigator gave Johnson $125, and Johnson provided a bundle of heroin from under a child in his car. Johnson claimed he was asked to get drugs for Jackson and that Jackson supplied the heroin, possibly even handing it to the officer himself.

    Procedural History

    Johnson was convicted of criminal sale of a controlled substance in the third degree at trial. The Appellate Division affirmed the conviction. Johnson appealed to the New York Court of Appeals, arguing that the trial court erred in refusing to submit the lesser included offense of criminal possession of a controlled substance in the seventh degree to the jury. The Court of Appeals reversed the Appellate Division’s order and ordered a new trial.

    Issue(s)

    Whether the trial court erred in refusing to submit to the jury the lesser included offense of criminal possession of a controlled substance in the seventh degree, when the defense requested it and there was a reasonable view of the evidence that would support a finding that the defendant committed the lesser offense but not the greater offense.

    Holding

    Yes, because there was a reasonable view of the evidence presented at trial that could have supported a finding that Johnson was guilty of criminal possession of a controlled substance, but not criminal sale. The jury is free to accept or reject any part of the evidence. Refusal to charge a lesser included crime is warranted only where ” ‘every possible hypothesis’ but guilt of the higher crime [is] excluded”.

    Court’s Reasoning

    The Court relied on CPL 300.50, which dictates when a trial judge must charge the jury as to a lesser crime. The statute requires a request for the charge and a reasonable view of the evidence supporting a finding that the defendant committed the lesser offense but not the greater. The Court emphasized that a refusal to charge a lesser included crime is only warranted when every possible hypothesis but guilt of the higher crime is excluded, citing People v. Henderson, 41 N.Y.2d 233 (1976) and People v. Shuman, 37 N.Y.2d 302 (1975). The Court stated, “Equally well established is the jury’s freedom ‘to accept or reject part or all of the defense or prosecution’s evidence’” (quoting People v. Henderson). Viewing the evidence favorably to the defendant, the jury could have rejected the sale element while accepting the possession element. The court noted, “In such a situation, it cannot be said that every hypothesis ‘but guilt of the higher crime [was] excluded’”. Therefore, the trial court should have charged the jury as to the lesser included offense of possession of a controlled substance.