| People v Davila |
| 2015 NY Slip Op 00016 [124 AD3d 1233] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGabriel Davila, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered June 3, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal sale of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed as amatter of discretion in the interest of justice and on the law, the indictment is dismissedand the matter is remitted to Supreme Court, Onondaga County, for further proceedingspursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of criminal sale of a controlled substance in the third degree (Penal Law§ 220.39 [1]). Defendant failed to renew his motion to dismiss theindictment at the close of the People's proof on rebuttal and thus failed to preserve forour review his contention that the evidence is legally insufficient to support theconviction (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97NY2d 678 [2001]). We nevertheless exercise our power to review that contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant is convicted of acting in concert with a codefendant, who was triedseparately, in a sale of heroin. Viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that thereis no valid line of reasoning or permissible inferences that "could lead a rational personto the conclusion reached by the jury on the basis of the evidence at trial" (People vBleakley, 69 NY2d 490, 495 [1987]).
The evidence established that the police were conducting surveillance of atwo-family residence, which was owned by the codefendant's mother-in-law; thecodefendant resided in the first-floor apartment and defendant's father resided in thesecond-floor apartment. Two police officers observed a woman approach a group of menstanding in front of the residence and observed defendant walk with the woman partwayup a long driveway that curved into a backyard. Those officers also saw defendant andthe woman subsequently have a brief verbal exchange after walking back down thedriveway, before the woman departed. Another officer, who could view the back of thehouse, observed defendant with the woman and the codefendant in the backyard, butdefendant was not with them when the sale was conducted at the house and he did notsee defendant again. The woman testified that she approached the group of men in thefront of the house and asked for "montega," which is slang in Spanish for heroin, andthat one of the men directed her toward the back of the house and walked with herpartway up the driveway where she met the codefendant. The woman arranged the salewith the codefendant, and purchased the heroin that the codefendant retrieved from thehouse. The police officer viewing the back of the house observed the codefendant at thehouse and a hand-to-hand exchange between the codefendant and the woman. Thewoman was stopped by the police and packets containing a tan powder that testedpositive for heroin were recovered from her, and the sum of $490 was recovered from thecodefendant. Following a search of the two-family home, the police recovered largequantities of heroin from the first-floor apartment and the basement, which could beaccessed from the back porch or the second-floor apartment, as well as heroin that washidden in the backyard. The codefendant had keys to both apartments. No drugs ormoney were recovered from defendant, which a police witness testified was consistentwith the role of the "steerer," who directed customers to the sale but did not handle thedrugs or money.
"To establish an acting-in-concert theory in the context of a drug sale, the Peoplemust prove not only that the defendant shared the requisite mens rea for theunderlying crime but also that defendant, in furtherance of the crime, solicited, requested,commanded, importuned or intentionally aided the principal in the commission of thecrime . . . The key to our analysis is whether a defendant intentionally anddirectly assisted in achieving the ultimate goal of the enterprise—the illegal sale ofa narcotic drug" (People v Bello, 92 NY2d 523, 526 [1998]; see PenalLaw § 20.00).
We conclude that the evidence is legally insufficient to establish that defendant actedin concert with the codefendant to sell heroin to the buyer inasmuch as he did nothing"more than simply direct the [buyer] to a location where [she] could purchase [heroin]"(People v Brown, 50 AD3d1596, 1597 [2008]; see People v Johnson, 238 AD2d 267, 267 [1997], lvdenied 90 NY2d 894 [1997]; cf. People v Ellerbe, 228 AD2d 301, 302[1996], lv denied 89 NY2d 921 [1996]; People v Fonseca, 208 AD2d399, 399 [1994]; see generally People v Herring, 83 NY2d 780, 783 [1994])."While this evidence certainly demonstrated that the defendant was able to identify alocal purveyor of narcotics, it did not show . . . that he shared the seller'sintent to bring the transaction about . . . [Indeed], by merely responding tothe [buyer's] inquiry as to who had drugs for sale, the defendant did nothing to solicit orrequest, much less demand[,] importune[,] [or assist in] the illicit sale" (People vRosario, 193 AD2d 445, 446 [1993], lv denied 82 NY2d 708 [1993]). Wetherefore reverse the judgment of conviction and dismiss the indictment.Present—Scudder, P.J., Fahey, Carni, Lindley and Valentino, JJ.