[*1]Decided on March 11, 2011

The People of the State of New York against Vincent Mondon, Defendant.

2010NY080855



People:

ADA Shannon Goldberg

Cyrus R. Vance, Jr.

District Attorney, New York County

One Hogan Place

New York, New York 10013

Defendant:

Sam Roberts, Esq., of Counsel

Steven Banks, Esq.

The Legal Aid Society

49 Thomas Street

New York, New York 10013

Lynn R. Kotler, J.

The defendant Vincent Mondon is charged with Criminal Sale of Marijuana in the Fourth Degree (PL § 221.40). The defendant moves to dismiss for facial insufficiency pursuant to CPL §§ 170.30 and 170.35. The People oppose the motion. For the reasons that follow, the motion is granted.

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged (CPL §§ 100.15[3]; 100.40[1][b]; 70.10). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses (CPL § 100.40[1][c]). An information which fails to satisfy these requirements is jurisdictionally defective (CPL § 170.30 and § 170.35; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729 [1986]).

In reviewing an accusatory instrument for facial sufficiency, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense ...," the Court should give it "a fair and not overly restrictive or technical reading" (People v. Casey, 95 [*2]NY2d 354, 360 [2000]). Moreover, the Court of Appeals has held that at the pleading stage, all that is needed is that the factual allegations are sufficiently evidentiary in character and tend to support the charges (People v Allen, 92 NY2d 378, 385 [1998]).

The information alleges that on November 1, 2010, at about 2:50 p.m., a confidential informant observed Mondon, along with two separately charged individuals, in front of 135 West 126th Street. Mondon stayed in the vicinity of that area and acted as a "lookout" while a marijuana sale was completed by the two separately charged defendants. During this time, Mondon "constantly look[ed] up and down the street for other individuals, as a lookout."

The defendant is charged under an acting in concert theory. In pertinent part, Penal Law § 221.40 provides that a person is guilty of Criminal Sale of a Marijuana in the Fourth Degree when he knowingly and unlawfully sells marijuana. " Sell' means to sell, exchange, give or dispose of to another, or to offer or agree to do the same" (PL § 220.00 [1]).

A defendant is liable for the conduct of another which constitutes an offense when, "acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct" (PL § 20.00). The defendant must share the intent or purpose of the principal actor(s) (see People v. Kaplan, 76 NY2d 140 [1990]). "[I]ntegral to each inquiry is whether a defendant exhibited any calculated or direct behavior that purposefully affected or furthered the sale of the controlled substance. The key to our analysis is whether a defendant intentionally and directly assisted in achieving the ultimate goal of the enterprise ..." (People v. Bello, 92 NY2d 523, 526 [1998]).

Acting as a lookout is calculated behavior that furthers a drug sale by ensuring that the sale is not interrupted and the buyer and seller are not apprehended (see People v. Lopez, 200 AD2d 525 [1st Dept 1994]; People v. Fuentes, 246 AD2d 474 (1st Dept.1998); People v. Coulter, 240 AD2d 756 [2nd Dept.1997]; People Suarez, 162 AD2d 301 [1st Dept.1990]).

Defendant Mondon argues that being in the vicinity of a drug sale and repeatedly looking up and down a street does not show that he shared an intent or purpose to sell marijuana. This Court agrees with the defendant. The allegations are too equivocal to demonstrate that the defendant's conduct was directed towards the drug sale. Mondon was simply looking up and down a public street in the middle of the afternoon. There is no indication that he was close enough to the sale to verbally or visually communicate with either of the separately charged defendants (compare People v. Kaplan, supra at 146). Nor are there any facts that would support the inference that Mondon knew a marijuana sale was being made, or that he even knew either of the separately charged defendants.

The allegation that the defendant was a lookout is based simply on the circumstance of his being on a public sidewalk standing at some unknown distance from the marijuana sale, looking around. Such circumstantial behavior does not provide reasonable cause to believe that the defendant was an accessory to the marijuana sale (see i.e. People v. Leslie Evens (3/9/99 NYLJ 27 [col. 3] [Crim Ct NY Co]) [defendant's physical proximity to the card game was an insufficient nexus absent some further act]; see also People v. Rosa, 7 Misc 3d 1011[A] [Crim Ct NY Co, 2005] [defendant's actions were "innocuous" absent allegations that his behavior was directed or because of the marijuana sale]; People v. Ronald Palmer, 2/25/93 NYLJ 24 [col 5] [Crim Ct NY Co] [defendant's alleged conduct, consisting of being "seen outside the premises, looking up and down the street, entering and exiting on some occasions," was "limited, [*3]conclusory, readily subject to an innocuous interpretation and below the minimal level of conduct deemed sufficient to ascribe accessorial liability for a criminal transaction").

Accordingly, the defendant's motion to dismiss for facial insufficiency is granted.

The People have leave to re-file the charges in accordance with this decision and consistent with CPL §§ 30.30 and 170.30 (People v. Nuccio, 78 NY2d 102 [1991]).

Conclusion

In accordance herewith, it is hereby:

ORDERED that defendant's motion to dismiss for facial insufficiency is granted; and it is further

ORDERED that the information is dismissed in its entirety; and it is further

ORDERED that the People have leave to re-file the charges in accordance with this decision and consistent with CPL §§ 30.30 and 170.30.

Requests for relief not expressly addressed herein have nonetheless been considered by the Court and are hereby expressly denied.

This constitutes the decision and order of the Court.

Dated: March 11, 2011

New York, New YorkSo Ordered:

______________________

Hon. Lynn R. Kotler, J.C.C.