| People v Ackies |
| 2010 NY Slip Op 09521 [79 AD3d 1050] |
| December 21, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v CareyAckies et al., Defendants, and Rasheem Blackman et al., Respondents. |
—[*1] David T. Roche, New York, N.Y., for respondent Tyriek Hankins. John J. Rapawy, New York, N.Y., for respondent Isiah Sadler.
Appeals by the People, as limited by their brief, from so much of (1) an order of the SupremeCourt, Kings County (Chun, J.), dated February 24, 2009, as, upon reargument, adhered to theoriginal determination in an order dated April 30, 2008, granting those branches of the motion of thedefendant Rasheem Blackman which were to dismiss counts 3, 4, 15, and 16 of the indictment insofaras charged against him on the ground that the evidence presented to the grand jury was legallyinsufficient, (2) an order of the same court dated January 5, 2009, as, upon reargument, adhered to theoriginal determination in an order dated April 8, 2008, granting those branches of the motion of thedefendant Sherron Bullock which were to dismiss counts 1, 2, 5, and 6 of the indictment insofar ascharged against him on the ground that the evidence presented to the grand jury was legally insufficient,(3) an order of the same court dated January 6, 2009, as, upon reargument, adhered to the originaldetermination in a second order dated April 8, 2008, granting those branches of the motion of thedefendant Jaquan Crawford which were to dismiss counts 1, 2, 13, and 14 of the indictment insofar ascharged against him and granting those branches of his motion which were to dismiss counts 3, 4, 15,and 16 insofar as charged against him to the extent of reducing those counts from conspiracy in thesecond degree to conspiracy in the fourth degree on the ground that the evidence presented to thegrand jury was legally insufficient, (4) a second order of the same court, also dated January 6, 2009,as, upon reargument, adhered to the original determination in [*2]anorder dated April 14, 2008, in effect, granting those branches of the motion of the defendant SandyFigueroa which were to dismiss counts 1, 2, 5, and 6 of the indictment insofar as charged against herand granting those branches of her motion which were to dismiss counts 3, 4, 7, and 8 insofar ascharged against her to the extent of reducing those counts from conspiracy in the second degree toconspiracy in the fourth degree on the ground that the evidence presented to the grand jury was legallyinsufficient, (5) a third order of the same court, also dated January 6, 2009, as, upon reargument,adhered to the original determination in an amended order dated April 22, 2008, granting thosebranches of the motion of the defendant Rayvon Folk which were to dismiss counts 1, 2, 13, and 14 ofthe indictment insofar as charged against him on the ground that the evidence presented to the grandjury was legally insufficient, (6) a fourth order of the same court, also dated January 6, 2009, as, uponreargument, adhered to the original determination in a third order dated April 8, 2008, granting thosebranches of the motion of the defendant Tyriek Hankins which were to dismiss counts 1, 2, 13, and 14of the indictment insofar as charged against him and granting those branches of his motion which wereto dismiss counts 3, 4, 15, and 16 insofar as charged against him to the extent of reducing those countsfrom conspiracy in the second degree to conspiracy in the fourth degree on the ground that theevidence presented to the grand jury was legally insufficient, (7) a fifth order of the same court, alsodated January 6, 2009, as, upon reargument, adhered to the original determination in a second orderdated April 14, 2008, granting those branches of the motion of the defendant Jameke Howard whichwere to dismiss counts 1, 2, 13, and 14 of the indictment insofar as charged against him on the groundthat the evidence presented to the grand jury was legally insufficient, (8) a sixth order of the same court,also dated January 6, 2009, as, upon reargument, adhered to the original determination in a third orderdated April 14, 2008, granting those branches of the motion of the defendant Leslie McFarland whichwere to dismiss counts 1, 2, 13, and 14 of the indictment insofar as charged against her on the groundthat the evidence presented to the grand jury was legally insufficient, (9) a seventh order of the samecourt, also dated January 6, 2009, as, upon reargument, adhered to the original determination in afourth order dated April 14, 2008, granting those branches of the motion of the defendant NoraMouzon, also known as Nora Hunter, which were to dismiss counts 1, 2, 13, and 14 of the indictmentinsofar as charged against her on the ground that the evidence presented to the grand jury was legallyinsufficient, and (10) an eighth order of the same court, also dated January 6, 2009, as, uponreargument, adhered to the original determination in an order dated April 15, 2008, granting thosebranches of the motion of the defendant Isiah Sadler which were to dismiss counts 1, 2, 13, and 14 ofthe indictment insofar as charged against him on the ground that the evidence presented to the grandjury was legally insufficient.
Ordered that the order dated February 24, 2009, is affirmed insofar as appealed from; and it isfurther,
Ordered that the order dated January 5, 2009, is reversed insofar as appealed from, on the law,upon reargument, the determination in the first order dated April 8, 2008, granting those branches ofthe motion of the defendant Sherron Bullock which were to dismiss counts 1, 2, 5, and 6 of theindictment insofar as charged against him is vacated, those branches of the motion are denied, counts 1,2, 5, and 6 insofar as charged against the defendant Sherron Bullock are reinstated, and the matter isremitted to the Supreme Court, Kings County, for further proceedings on those counts of the indictmentinsofar as charged against that defendant; and it is further,
Ordered that the first order dated January 6, 2009, is modified, on the law, by deleting theprovisions thereof, upon reargument, adhering to the original determination in the second order datedApril 8, 2008, granting those branches of the motion of the defendant Jaquan Crawford which were todismiss counts 1 and 2 of the indictment insofar as charged against him and granting those branches ofhis motion which were to dismiss counts 3, 4, 15, and 16 insofar as charged against him to the extent ofreducing those counts from conspiracy in the second degree to conspiracy in the fourth degree, andsubstituting therefor a provision, upon reargument, vacating that determination and denying thosebranches of the motion; as so modified, the first order dated January 6, 2009, is affirmed insofar asappealed from, counts 1, 2, 3, 4, 15, and 16 insofar as charged against the defendant Jaquan Crawfordare reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedingson those counts of the indictment insofar as charged against that defendant; and it is further,[*3]
Ordered that the second order dated January 6, 2009, isreversed insofar as appealed from, on the law, upon reargument, the determination in the first orderdated April 14, 2008, granting those branches of the motion of the defendant Sandy Figueroa whichwere to dismiss counts 1, 2, 5, and 6 of the indictment insofar as charged against her and granting thosebranches of her motion which were to dismiss counts 3, 4, 7, and 8 insofar as charged against her to theextent of reducing those counts from conspiracy in the second degree to conspiracy in the fourth degreeis vacated, those branches of the motion are denied, counts 1, 2, 3, 4, 5, 6, 7, and 8 insofar as chargedagainst the defendant Sandy Figueroa are reinstated, and the matter is remitted to the Supreme Court,Kings County, for further proceedings on these counts of the indictment insofar as charged against thatdefendant; and it is further,
Ordered that the third order dated January 6, 2009, is modified, on the law, by deleting theprovision thereof, upon reargument, adhering to the original determination in the amended order datedApril 22, 2008, granting those branches of the motion of the defendant Rayvon Folk which were todismiss counts 1 and 2 of the indictment insofar as charged against him, and substituting therefor aprovision, upon reargument, vacating that determination and denying those branches of the motion; asso modified, the third order dated January 6, 2009, is affirmed insofar as appealed from, counts 1 and2 insofar as charged against the defendant Rayvon Folk are reinstated, and the matter is remitted to theSupreme Court, Kings County, for further proceedings on those counts of the indictment insofar ascharged against that defendant; and it is further,
Ordered that the fourth order dated January 6, 2009, is modified, on the law, by deleting theprovision thereof, upon reargument, adhering to the original determination in the third order dated April8, 2008, granting those branches of the motion of the defendant Tyriek Hankins which were to dismisscounts 1 and 2 of the indictment insofar as charged against him and to dismiss counts 3, 4, 15, and 16of the indictment insofar as charged against him to the extent of reducing those counts insofar ascharged against him from conspiracy in the second degree to conspiracy in the fourth degree, andsubstituting therefor provisions, upon reargument, vacating that determination, and denying thosebranches of the motion which were to dismiss counts 15 and 16 insofar as charged against thedefendant Tyriek Hankins; as so modified, the fourth order dated January 6, 2009, is affirmed insofaras appealed from, counts 15 and 16 insofar as charged against the defendant Tyriek Hankins arereinstated, and the matter is remitted to the Supreme Court, Kings County, for a new determination ofthose branches of the motion of the defendant Tyriek Hankins which were to dismiss counts 1, 2, 3,and 4 of the indictment insofar as charged against that defendant following a review by the SupremeCourt of the grand jury minutes with respect to the issue of whether at least 12 grand jurors voted toindict that defendant on those counts (see CPL 190.25 [1]), and thereafter for furtherproceedings on counts 15 and 16 of the indictment insofar as charged against that defendant; and it isfurther,
Ordered that the fifth order dated January 6, 2009, is modified, on the law, by deleting theprovision thereof, upon reargument, adhering to the original determination in the second order datedApril 14, 2008, granting those branches of the motion of the defendant Jameke Howard which were todismiss counts 1 and 2 of the indictment insofar as charged against him, and substituting therefor aprovision, upon reargument, vacating that determination and denying those branches of the motion; asso modified, the fifth order dated January 6, 2009, is affirmed insofar as appealed from, counts 1 and 2insofar as charged against the defendant Jameke Howard are reinstated, and the matter is remitted tothe Supreme Court, Kings County, for further proceedings on those counts of the indictment insofar ascharged against that defendant; and it is further,
Ordered that the sixth order dated January 6, 2009, is modified, on the law, by deleting theprovision thereof, upon reargument, adhering to the original determination in the third order dated April14, 2008, granting those branches of the motion of the defendant Leslie McFarland which were todismiss counts 1 and 2 of the indictment insofar as charged against her, and substituting therefor aprovision, upon reargument, vacating that determination and denying those branches of the motion; asso modified, the sixth order dated January 6, 2009, is affirmed insofar as appealed from, counts 1 and2 insofar as charged against the defendant Leslie McFarland are reinstated, and the matter is remittedto the Supreme Court, Kings County, for further proceedings on those counts of the indictment insofaras charged against that defendant; and it is further,[*4]
Ordered that the seventh order dated January 6, 2009, ismodified, on the law, by deleting the provision thereof, upon reargument, adhering to the originaldetermination in the fourth order dated April 14, 2008, granting those branches of the motion of thedefendant Nora Mouzon, also known as Nora Hunter, which were to dismiss counts 1 and 2 of theindictment insofar as charged against her, and substituting therefor a provision, upon reargument,vacating that determination and denying those branches of the motion; as so modified, the seventh orderdated January 6, 2009, is affirmed insofar as appealed from, counts 1 and 2 insofar as charged againstthe defendant Nora Mouzon, also known as Nora Hunter, are reinstated, and the matter is remitted tothe Supreme Court, Kings County, for further proceedings on those counts of the indictment insofar asasserted against that defendant; and it is further,
Ordered that the eighth order dated January 6, 2009, is modified, on the law, by deleting theprovision thereof, upon reargument, adhering to the original determination in the order dated April 15,2008, granting those branches of the motion of the defendant Isiah Sadler which were to dismiss counts1 and 2 of the indictment insofar as charged against him, and substituting therefor a provision, uponreargument, vacating that determination and denying those branches of the motion; as so modified, theeighth order dated January 6, 2009, is affirmed insofar as appealed from, counts 1 and 2 insofar ascharged against the defendant Isiah Sadler are reinstated, and the matter is remitted to the SupremeCourt, Kings County, for further proceedings on those counts of the indictment insofar as chargedagainst that defendant.
In reviewing the sufficiency of the evidence before a grand jury, a court must consider "whether theevidence viewed in the light most favorable to the People, if unexplained and uncontradicted, wouldwarrant conviction by a petit jury" (People v Jennings, 69 NY2d 103, 114 [1986]). "Thereviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flowfrom those facts supply proof of each element of the charged crimes and whether the grand jury couldrationally have drawn the inference of guilt" (People v Boampong, 57 AD3d 794, 795 [2008]; see CPL70.10 [1]; People v Bello, 92 NY2d 523, 525 [1998]). In the context of a grand juryproceeding, "legal sufficiency means prima facie proof of the crimes charged, not proof beyond areasonable doubt" (People v Bello, 92 NY2d at 526).
To establish a defendant's guilt of conspiracy, the evidence must prove that, with the intent that theobject crime be committed, the defendant agreed with one or more people to engage in or cause thecommission of the object crime, and that one of the conspirators committed an overt act in furtheranceof the conspiracy (see People v Arroyo, 93 NY2d 990, 991 [1999]; People v Austin, 9 AD3d 369, 371[2004]; People v Harris, 288 AD2d 610, 617-618 [2001]). The illicit agreement to cause thecommission of the object crime may be inferred from circumstantial evidence (see People vRodriguez, 274 AD2d 826, 827 [2000]; People v Giordano, 211 AD2d 814, 816[1995], affd 87 NY2d 441 [1995]), and the overt act, which need not be the object crime,provides corroboration of the existence of the agreement (see People v McGee, 49 NY2d 48,57-58 [1979], cert denied sub nom. Waters v New York, 446 US 942 [1980]; People vAustin, 9 AD3d at 371). Proof of a defendant's knowledge of the identities and specific acts of allhis coconspirators is not necessary where the circumstantial evidence establishes the defendant'sknowledge that he is part of a criminal venture which extends beyond his individual participation (see People v Riggins, 28 AD3d 934,935 [2006]; People v Brooks, 268 AD2d 889, 890 [2000]).
In the indictment under review here, the defendant Rasheem Blackman was charged with, inter alia,four counts of conspiracy in the second degree (Penal Law § 105.15). Counts 3 and 15 allegetwo distinct conspiracies, each premised upon the object crime of criminal sale of a controlledsubstance in the first degree (Penal Law § 220.43), and counts 4 and 16, relating to the sameconspiracies, are premised upon the object crime of criminal possession of a controlled substance in thesecond degree (Penal Law § 220.18). Contrary to the People's contention, the Supreme Courtproperly dismissed counts 3, 4, 15, and 16 insofar as charged against Blackman because the evidencewas legally insufficient to establish his participation in those conspiracies and his commission of eachelement of those crimes as charged (see CPL 210.20 [1] [b]; People v Emburey, 61 AD3d 990, 991[2009]).
The Supreme Court also properly dismissed counts 13 and 14 of the indictment insofar as chargedagainst the defendants Jaquan Crawford, Rayvon Folk, Tyriek Hankins, Jameke Howard, LeslieMcFarland, Nora Mouzon, also known as Nora Hunter (hereinafter Mouzon), and Isiah Sadler. Thosecounts charged the crime of conspiracy in the first degree, predicated upon allegations that these [*5]defendants, while being over the age of 18, unlawfully conspired withBlackman, while he was under the age of 16 (Penal Law § 105.17). Although the evidencebefore the grand jury established that the conspiracy commenced in October 2005 when Blackmanwas still 15, the evidence was legally insufficient to demonstrate that Blackman participated in thealleged conspiracy prior to his sixteenth birthday on November 18, 2005 (see CPL 210.20 [1][b]; People v Emburey, 61 AD3d990 [2009]; cf. People v Austin, 9 AD3d at 371-372).
Apart from the charges of conspiracy in the first degree alleged in counts 13 and 14, the indictmentalleged two distinct charges of conspiracy in the first degree in counts 1 and 2 and in counts 5 and 6,predicated upon alleged agreements between certain defendants over the age of 18 with an underageindividual or individuals other than Blackman. The Supreme Court dismissed these counts with respectto the defendants Sherron Bullock, Crawford, Sandy Figueroa, Folk, Hankins, Howard, McFarland,Mouzon, and Sadler on the ground of legally insufficient evidence. The Supreme Court should not havedismissed counts 1 and 2 insofar as charged against Bullock, Crawford, Figueroa, Folk, Howard,McFarland, Mouzon, and Sadler, or counts 5 and 6 insofar as charged against Bullock and Figueroa.Contrary to the Supreme Court's conclusion, the grand jury evidence was legally sufficient to establishthat, during the course of the respective conspiracies, these defendants, while being over the age of 18,unlawfully conspired with individuals, other than Blackman, who were under the age of 16.Accordingly, the Supreme Court erred in dismissing these counts insofar as charged against thesedefendants (see CPL 70.10 [1]; Penal Law § 105.17; People v Austin, 9 AD3dat 371-372; People v Riggins, 28 AD3d at 935; People v Brooks, 268 AD2d at 890).Although the Supreme Court should not have dismissed counts 1 and 2 of the indictment insofar ascharged against Hankins on the ground of legally insufficient evidence, and notwithstanding ourconclusion that that determination must accordingly be vacated, we remit the matter to the SupremeCourt, Kings County, for a new determination of those branches of Hankins's motion which were todismiss those counts of the indictment insofar as charged against him, following a review by theSupreme Court of the grand jury minutes with respect to the issue of whether at least 12 grand jurorsvoted to indict Hankins on those counts (see CPL 190.25 [1]; see also NY Const, artI, § 6; People v Green, 96 NY2d 195, 199-200 [2001]; People v Pelchat, 62NY2d 97, 105 [1984]).
The Supreme Court reduced counts 3 and 4 insofar as charged against Figueroa, Hankins, andCrawford, counts 7 and 8 insofar as charged against Figueroa, and counts 15 and 16 insofar ascharged against Crawford and Hankins, from conspiracy in the second degree to conspiracy in thefourth degree, on the ground that there was insufficient evidence that these defendants intended to sellor possess narcotics in the weights required for the commission of the class A felonies which were theobject crimes of those conspiracies. In so determining, the Supreme Court improperly applied the intentelement for the commission of the object crime rather than the intent element of conspiracy, which is anillicit agreement distinct from the object crime (see People v McGee, 49 NY2d at 57-58;People v Austin, 9 AD3d at 371). To be found guilty of conspiracy in the second degree, adefendant must enter into the illicit agreement "with intent that conduct constituting a class A felony beperformed" (Penal Law § 105.15). Upon our review of the evidence, we find that, with respectto each alleged conspiracy, it was legally sufficient to establish that Figueroa, Crawford, and Hankins,with the intent that conduct constituting a class A felony be performed, entered into an agreement tocause the performance of such conduct, namely, criminal sale of a controlled substance in the firstdegree (Penal Law § 220.43), and criminal possession of a controlled substance in the seconddegree (Penal Law § 220.18). Accordingly, the Supreme Court erred in reducing counts 3, 4, 7,and 8 insofar as charged against Figueroa, counts 3, 4, 15, and 16 insofar as charged againstCrawford, and counts 15 and 16 insofar as charged against Hankins, and those counts must bereinstated against those defendants. Although the Supreme Court should not have reduced counts 3 and4 insofar as charged against Hankins on the ground of legally insufficient evidence, and notwithstandingour conclusion that that determination must accordingly be vacated, we remit the matter to the SupremeCourt, Kings County, for a new determination of those branches of Hankins's motion which were todismiss those counts of the indictment insofar as charged against him, following a review by theSupreme Court of the grand jury minutes with respect to the issue of whether at least 12 grand jurorsvoted to indict Hankins on those counts (see CPL 190.25 [1]; see also NY Const, artI, § 6; People v Green, 96 NY2d at 199-200; People v Pelchat, 62 NY2dat105) Santucci, J.P., Angiolillo, Dickerson and Austin, JJ., concur.