92 N.Y.2d 378 (1998)

Under Penal Law § 100.20, a person is not guilty of criminal solicitation when their solicitation is conduct of a kind that is necessarily incidental to the commission of the crime solicited.

Summary

This case addresses whether the solicitation exemption statute (Penal Law § 100.20) applies to defendants charged with criminal solicitation for attempting to purchase marihuana from undercover officers during a reverse sting operation. The officers offered oregano instead of actual marihuana. The New York Court of Appeals held that the defendants’ conduct fell within the exemption because their attempt to purchase was necessarily incidental to the crime of selling marihuana. The court reversed the County Court’s order and reinstated the trial court’s dismissal of the charges.

Facts

The Rochester City Police Department conducted a reverse sting operation where undercover officers posed as marihuana dealers, offering oregano instead of marihuana. Fifty-four individuals were arrested after attempting to purchase the substance. Each defendant was charged with criminal solicitation in the fifth degree (Penal Law § 100.00), a violation, not a crime.

Procedural History

The defendants moved to dismiss the charges in Rochester City Court, arguing that their conduct fell within the solicitation exemption statute (Penal Law § 100.20). The City Court agreed and dismissed the charges. The County Court of Monroe County reversed, concluding that the defendants’ conduct was not “necessarily incidental” to the solicited crime. The Court of Appeals granted leave to appeal.

Issue(s)

Whether the defendants’ conduct of attempting to purchase marihuana from undercover officers constitutes conduct that is “necessarily incidental” to the commission of the crime solicited (criminal sale of marihuana) under Penal Law § 100.20, thus exempting them from criminal solicitation charges.

Holding

Yes, because a criminal sale of marihuana requires a willing buyer; therefore, the buyer’s conduct is necessarily incidental to the commission of the sale. The solicitation exemption applies, precluding prosecution for criminal solicitation.

Court’s Reasoning

The court focused on the language of Penal Law § 100.20, which exempts conduct “of a kind that is necessarily incidental to the commission of the crime solicited.” It reasoned that a criminal sale of marihuana requires a willing buyer. The court distinguished this from a situation where a third party solicits a marihuana transaction between two other individuals, where the exemption might not apply.

Applying the logic of People v. Manini, where the court held that a seller could not be held as an accomplice to the buyer’s possession, the court here determined that the buyer’s solicitation is inherent to the sale. After a marihuana sale, the seller is liable for the sale, and the buyer for possession, but neither is liable for soliciting the other.

The court noted that the Marihuana Reform Act of 1977 aimed to decriminalize the possession of small amounts of marihuana. Holding the defendants liable for solicitation would expose them to harsher penalties than those for actual purchase and possession, which is inapposite to the intent of the legislation. The court stated, “legislative intent is ‘the great and controlling principle’, and our proper judicial function is to ‘discern and apply the will of the Legislature’” (quoting Matter of Scotto v. Dinkins, 85 N.Y.2d 209, 214).

The court also rejected the defendants’ argument that the accusatory instruments were jurisdictionally defective, finding the allegations sufficiently evidentiary and establishing reasonable cause to believe the defendants committed the crime.