| People v Carpenter |
| 2016 NY Slip Op 03185 [138 AD3d 1130] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lester Carpenter, Appellant. |
Lynn W. L. Fahey, New York, NY (Jenin Younes of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Ellen C. Abbot, Merri Turk Lasky, and Nancy Fitzpatrick Talcott ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Latella, J.), rendered February 14, 2013, convicting him of attempted criminalpossession of a controlled substance in the second degree, criminal possession of aweapon in the second degree, and conspiracy in the fourth degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant and six codefendants were charged under an acting-in-concert theorywith, inter alia, attempted criminal possession of a controlled substance in the seconddegree and criminal possession of a weapon in the second degree. At a jury trial, thePeople presented evidence that one of the codefendants, James Jones, set up a meetingwith an individual named Joseph Azoro to purchase six ounces of cocaine in front of abuilding located in the Edgemere housing projects in Queens. Azoro was found later thatday in front of the entrance to that building with a gunshot wound to his abdomen.Although there was no proof that the defendant was present when Azoro was shot, thePeople alleged that he was liable, under an acting-in-concert theory, for the crimes ofattempted criminal possession of a controlled substance in the second degree andcriminal possession of a weapon in the second degree. The People asserted, among otherthings, that the defendant assisted in the commission of these crimes by making phonecalls to help lure Azoro to the housing project and by telling Jones where guns could belocated. The jury returned a verdict finding the defendant guilty of, inter alia, attemptedcriminal possession of a controlled substance in the second degree and criminalpossession of a weapon in the second degree. We affirm.
The statutory definition of accessory liability provides that "[w]hen one personengages in conduct which constitutes an offense, another person is criminally liable forsuch conduct when, acting with the mental culpability required for the commissionthereof, he solicits, requests, commands, importunes, or intentionally aids such person toengage in such conduct" (Penal Law § 20.00). Inasmuch as the statuterequires that the accomplice act with the mental culpability required for the commissionof the underlying crime, an accomplice must have a shared intent, or "community ofpurpose" with the principal (People v Cabey, 85 NY2d 417, 421 [1995] [internalquotation marks omitted]; see People v Allah, 71 NY2d 830, 832 [1988];People v Carter, 293 AD2d 484, 485 [2002]). In addition [*2]to the mens rea requirement, the statute includes an actusreus component as well: "the accomplice must have intentionally aided the principal inbringing forth a result" (People v Kaplan, 76 NY2d 140, 146 [1990] [emphasisomitted]). Accordingly, "[a]ccomplice liability requires, at a minimum, awareness of theproscribed conduct and some overt act in furtherance of such" (People v Hibbert,282 AD2d 365, 366 [2001]). "The key to [the] analysis is whether a defendantintentionally and directly assisted in achieving the ultimate goal of the enterprise"(People v Bello, 92 NY2d 523, 526 [1998]).
Here, the defendant was convicted of, among other crimes, attempted criminalpossession of a controlled substance in the second degree and criminal possession of aweapon in the second degree. Penal Law § 220.18 provides that "[a] personis guilty of criminal possession of a controlled substance in the second degree when he orshe knowingly and unlawfully possesses . . . one or more preparations,compounds, mixtures or substances containing a narcotic drug and said preparations,compounds, mixtures or substances are of an aggregate weight of four ounces or more"(Penal Law § 220.18 [1]).
"A defendant is guilty of an attempt to commit a crime when, with intent to commit acrime, he [or she] engages in conduct which tends to effect the commission of suchcrime" (Penal Law § 110.00; see People v Naradzay, 11 NY3d 460, 466 [2008]). Inorder to constitute an attempt, the defendant's "conduct must have passed the stage ofmere intent or mere preparation to commit a crime" (People v Mahboubian, 74NY2d 174, 189 [1989]; see People v Naradzay, 11 NY3d at 466). In other words,the defendant must have "engaged in conduct that came 'dangerously near' commissionof the completed crime" (People v Kassebaum, 95 NY2d 611, 618 [2001],quoting People v Acosta, 80 NY2d 665, 670 [1993]). "The 'dangerously near'standard does not, however, mandate that the defendant take 'the final step necessary' tocomplete the offense" (People v Naradzay, 11 NY3d at 466, quoting People vMahboubian, 74 NY2d at 190; see People v Bracey, 41 NY2d 296, 300[1977]).
Here, the evidence was legally sufficient to establish, beyond a reasonable doubt, thedefendant's guilt of attempted criminal possession of a controlled substance in the seconddegree. The evidence presented by the People demonstrated that the codefendants came"dangerously near" the commission of the completed crime (People vMahboubian, 74 NY2d at 192), and that they therefore engaged in conduct whichconstituted the offense of attempted criminal possession of cocaine in the second degree(see Penal Law § 20.00; People v Acosta, 80 NY2d at 671;People v Bens, 5 AD3d391, 391-392 [2004]; see also People v Kassebaum, 95 NY2d at 618-619;accord People v Acosta, 198 AD2d 285, 285-286 [1993]). In addition toestablishing that the underlying crime of attempted possession had been committed, thePeople also demonstrated that the defendant shared a "community of purpose" with thecodefendants with respect to obtaining possession of Azoro's cocaine (People vCabey, 85 NY2d at 421 [internal quotation marks omitted]). The recorded phoneconversations between Jones and the defendant showed that the defendant was aware ofthe scheme to obtain Azoro's cocaine and that he was promised a share of the proceeds ifthey succeeded in gaining possession of it (see People v Cortes, 112 AD2d 946,946-947 [1985]). Furthermore, the People's evidence showed that the defendant assistedin convincing Azoro to come to the housing project to complete the sale of the cocaineeven though Azoro suspected that Jones was setting him up. The defendant called Azoroon the phone and assured him that the transaction was legitimate and that Jones wasacting in good faith (see People v Ficarrota, 91 NY2d 244, 249 [1997]).Accordingly, we conclude that the evidence was legally sufficient to establish, beyond areasonable doubt, the defendant's guilt of attempted criminal possession of a controlledsubstance in the second degree. Moreover, upon our independent review pursuant to CPL470.15 (5), we are satisfied that the verdict of guilt as to that crime was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
Furthermore, we conclude that the evidence was legally sufficient to establish,beyond a reasonable doubt, the defendant's guilt of criminal possession of a weapon inthe second degree. As relevant here, a person is guilty of criminal possession of aweapon in the second degree when he or she possesses a loaded firearm outside of his orher home or place of business (see Penal Law § 265.03 [3])."[P]ossession . . . is complete once [an individual] has dominion and controlof a weapon" (People vMcKnight, 16 NY3d 43, 50 [2010]).
[*3] Here, the People presented recorded phoneconversations between Jones and the defendant, during which the defendant encouragedJones to follow though with his plan and informed him about the location of certainfirearms. Additional phone conversations indicated that other codefendants who werelocated at the Edgemere housing projects were apprised of Jones' scheme and that theywere waiting for Azoro outside of the subject building with the intention of robbing himof the cocaine. One of the recorded phone calls between two of the codefendantsconcerned the location of a certain firearm, and one of the codefendants was instructed toretrieve it. The People's evidence further demonstrated that Azoro was found outside thesubject building a short time later with a recently-inflicted gunshot wound. Viewing theevidence in the light most favorable to the prosecution, and giving it the benefit of everyreasonable inference to be drawn therefrom (see People v Ramos, 19 NY3d 133, 136 [2012]), we findthat it was legally sufficient to establish, beyond a reasonable doubt, that the defendantsolicited, requested, commanded, importuned, or intentionally aided the individual whoengaged in conduct which constituted the offense of criminal possession of a weapon inthe second degree (see Penal Law § 20.00; People v Ekwegbalu, 131AD3d 982, 983 [2015]; People v Pressley, 115 AD3d 991, 992 [2014]; People v Johnson, 94 AD3d1408, 1409 [2012]; People v Santiago, 199 AD2d 290 [1993]). The Peoplewere not required to conclusively establish the identity of the individual who actuallypossessed the weapon (seePeople v Clark, 23 AD3d 673, 674-675 [2005]), and their failure to do so didnot render the evidence legally insufficient to establish the defendant's guilt under anacting-in-concert theory (see People v Hirschfeld, 282 AD2d 337, 338 [2001];People v Taylor, 74 AD2d 177, 179 [1980]). Moreover, upon our independentreview pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt as to thatcrime was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Rivera, J.P.,Balkin, Miller and LaSalle, JJ., concur.