| People v Curry |
| 2013 NY Slip Op 08455 [112 AD3d 843] |
| December 18, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Mustafa Curry, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbartand Anne Grady of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Rooney, J.), rendered January 11, 2012, convicting him of criminal sale of a controlledsubstance in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, andthe matter is remitted to the Supreme Court, Richmond County, for further proceedingsconsistent with CPL 160.50.
"Upon [a] defendant's request, the Appellate Division must conduct a weight of theevidence review" and, thus, "a defendant will be given one appellate review of adversefactual findings" (People vDanielson, 9 NY3d 342, 348 [2007]; see CPL 470.15 [5]; People v Romero, 7 NY3d633, 636 [2006]). If a finding in favor of the defendant would not have beenunreasonable, then this Court "must weigh conflicting testimony, review any rationalinferences that may be drawn from the evidence and evaluate the strength of suchconclusions" (People v Danielson, 9 NY3d at 348). Once this Court conductssuch an analysis, it must then decide whether the verdict finding the defendant guiltybeyond a reasonable doubt was warranted. "Essentially," this Court "sits as a thirteenthjuror and decides which facts were proven at trial" (id., citing Tibbs vFlorida, 457 US 31, 42 [1982]; see People v Noble, 86 NY2d 814, 815[1995]). If it appears that the factfinder failed to give the evidence the weight it should beaccorded, then this Court may set aside the verdict (see People v Mateo, 2 NY3d383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]).
Upon conducting our analysis in this case in accordance with the foregoingprinciples, we find that the verdict convicting the defendant of criminal sale of acontrolled substance in the third degree was against the weight of the evidence. Toestablish a defendant's guilt of this crime under a theory of accomplice liability, thePeople must prove that the defendant shared the requisite mens rea, to "knowingly andunlawfully" sell drugs, and that, in furtherance thereof, the defendant solicited, requested,commanded, importuned, or intentionally aided the seller in the commission of the crime(Penal Law § 220.39 [1]; see Penal Law § 20.00; People vBello, 92 NY2d 523, 526 [1998]; People v Kaplan, 76 NY2d 140, 144[1990]).[*2]
At trial, the People presented evidence that anundercover police officer approached the codefendant on Hendricks Avenue for thepurpose of soliciting drugs. After determining that the codefendant was "good," meaningthat he possessed drugs, the officer followed the codefendant into the courtyard of amultifamily home on Hendricks Avenue. While standing in the courtyard, the officerpurchased marijuana from the codefendant. The officer then told the codefendant that hehad $200 to buy crack cocaine. The codefendant responded by telling the officer that hehad to call "his man." Using the officer's cell phone, the codefendant then called anumber assigned to a prepaid cell phone. There was no evidence, however, that thephone number that the codefendant called belonged to the defendant.
A few minutes later, the codefendant announced "he's here" and walked out of theofficer's line of sight onto Hendricks Avenue. While the officer was standing in thecourtyard, he heard a car door open and close. The officer waited a few more secondsand then walked to the front of the courtyard, where he could see onto HendricksAvenue. At that point, he observed a vehicle in which the defendant was seated in thedriver's seat, a woman was seated in the front passenger seat, and the codefendant wasseated in a rear seat directly behind the defendant. The officer then returned to thecourtyard and waited in a position from which he could not observe the codefendant orthe defendant. After several seconds passed, the codefendant returned to the courtyardand handed the officer several bags of crack cocaine. In exchange, the officer gave him$200. The officer walked out of the courtyard and proceeded to walk along HendricksAvenue. A few moments later, he turned around and observed the codefendant extend hishand through the open driver seat window of the car in which the defendant was seated.Although the officer testified that, based upon his training and experience as anundercover officer who had made over 500 buys, he believed that the codefendantreceived drugs from the defendant inside the vehicle, he admitted that he did not observean exchange of money or drugs between the codefendant and the defendant.
Upon the exercise of our factual review power (see CPL 470.15), we findthat the rational inferences which can be drawn from the evidence presented at trial donot support the conviction beyond a reasonable doubt. Thus, the judgment must bereversed and the indictment dismissed (see People v Hibbert, 282 AD2d 365,365-366 [2001]; Matter of Cory P., 240 AD2d 749, 750 [1997]; People vLegall, 180 AD2d 822, 823 [1992]; People v Bryant, 106 AD2d 650, 651[1984]).
In light of our determination, we need not address the defendant's remainingcontentions. Skelos, J.P., Balkin, Leventhal and Sgroi, JJ., concur.