| People v Crampton |
| 2007 NY Slip Op 09445 [45 AD3d 1180] |
| November 29, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v William I.Crampton, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Benjamin K. Bergman of counsel), forrespondent.
Mercure, J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered July 10, 2006, convicting defendant following a nonjury trial of the crime of criminalsale of a controlled substance in the fourth degree and the violation of unlawful possession ofmarihuana.
Defendant was charged in an indictment with criminal sale of a controlled substance in thefourth degree and unlawful possession of marihuana after an incident in which he offered to sellVicodin, a narcotic preparation (see Penal Law § 220.00 [8]), to an undercoverofficer in the City of Binghamton, Broome County. When police officers thereafter approacheddefendant and asked if he had any illegal contraband, defendant produced a prescription bottle ofVicodin, displayed a bandage on his back, and explained that he had recently undergone backsurgery. Defendant consented to a search of his person, which revealed a concealed bag ofmarihuana in his pants.
Following a bench trial, defendant was convicted as charged. County Court then sentencedhim, as a second felony offender, to a prison term of 2½ years. Defendant appeals and wenow affirm.
We reject defendant's argument that his conviction of criminal sale of a controlled [*2]substance in the fourth degree is not supported by legally sufficientevidence and is against the weight of the evidence. It is well settled that "[a] conviction forcriminal sale does not require that an actual sale be consummated; under Penal Law §220.00 (1), a 'sale' includes an offer to sell or exchange drugs" (People v Mike, 92 NY2d996, 998 [1998]; see People v Samuels, 99 NY2d 20, 24 [2002]). Not every casual offer,however, is criminal. Rather, "in order to support a conviction under an offering for sale theory,there must be evidence of a bona fide offer to sell—i.e., that defendant had both the intentand the ability to proceed with the sale" (People v Mike, 92 NY2d at 998; see Peoplev Samuels, 99 NY2d at 24; People v Gomcin, 265 AD2d 493, 495 [1999],affd 8 NY3d 899 [2007]).
Here, the undercover officer testified that defendant approached him on the street. Aftersome initial conversation about where crack cocaine could be purchased, defendant stated to theofficer, "I got Vicodin if you want. I am selling it for $2 a pill if you want any of those." Thecontext of that statement, which was made on a dark street corner after a conversation centeredon the purchase of drugs, further supports an inference that defendant had the intent toconsummate a sale (see People v Samuels, 99 NY2d at 24; cf. People v Gomcin,265 AD2d at 495). Finally, the arresting officers found Vicodin in defendant's possession whenhe was stopped shortly thereafter, evincing defendant's ability to complete the sale (seePeople v McGrath, 115 AD2d 128, 129 [1985], lv denied 67 NY2d 654 [1986];see also People v Samuels, 99 NY2d at 24). Viewing the evidence in the light mostfavorable to the People, there was a "valid line of reasoning and permissible inferences whichcould lead a rational person to the conclusion reached by [County Court] on the basis of theevidence at trial and as a matter of law satisfy the proof and burden requirements for everyelement of the crime charged" (People v Bleakley, 69 NY2d 490, 495 [1987] [citationomitted]). Moreover, after considering the evidence in a neutral light and " 'weigh[ing] therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony' " (id. at 495, quoting People ex rel.MacCracken v Miller, 291 NY 55, 62 [1943]), we cannot say that the court failed to give theevidence the weight it should have been accorded.
We further reject defendant's argument that the first count of the indictment, chargingdefendant with criminal sale of a controlled substance in the fourth degree, was duplicitous. Asdefendant asserts, "where one count [of an indictment] alleges the commission of a particularoffense occurring repeatedly during a designated period of time, that count encompasses morethan one offense and is duplicitous" (People v Keindl, 68 NY2d 410, 417-418 [1986]).Moreover, "[e]ven if a count facially charges one criminal act, that count is duplicitous if theevidence makes plain that multiple criminal acts occurred during the relevant time period,rendering it . . . impossible to determine the particular act upon which the juryreached its verdict" (People vDalton, 27 AD3d 779, 781 [2006], lvs denied 7 NY3d 754, 811 [2006]; see People v Levandowski, 8 AD3d898, 899-900 [2004]). A review of the undercover officer's testimony here, however, revealsthat while defendant told the undercover officer that he was selling Vicodin for $2 a pill severaltimes over the course of a couple of minutes, his statements were not independent, discrete offersconstituting separate acts. Rather, the statements were part of a continuous course of conductover a brief period of time meant to convince the undercover officer to reconsider his initialrefusal to purchase the drug. As such, "the charged conduct was . . . the product ofone 'impulse', permitting only one prosecution" and the People were not required to chargemultiple offers (People v Okafore, 72 NY2d 81, 87 [1988]; see People vMatarese, 57 AD2d 765 [1977]; cf.People v Dathan, 27 AD3d 575, 575-576 [2006], lv denied 7 NY3d 787 [2006]).[*3]
Cardona, P.J., Crew III, Mugglin and Rose, JJ., concur.Ordered that the judgment is affirmed.