People v. Hatchett

Abraham J. Mayers, New York City, for defendant. Robert M. Morgenthau, District Attorney, New York City (Patricia O'Connor of counsel), for plaintiff.

OPINION OF THE COURT

DEBORAH KAPLAN, J. The defendant stands charged with criminal sale of marijuana in the fourth degree (Penal Law § 221.40) and criminal possession of marijuana in the fifth degree (Penal Law § 221.10 [2]). The information alleges that, at approximately 2:10 P.M. in front of 75 Post Avenue in New York County, an undercover prerecorded buy money from an undercover officer. (See People v Hibbert, 282 AD2d 365 [1st Dept 2001].) In Hibbert, the Court found the evidence insufficient to establish that the defendant had any role in or even knowledge of the sale, even though the prerecorded buy money was recovered from him. Not unexpectedly, research reveals no reported cases where the mere opening of a door for a drug buyer or any similar conduct warranted an inference of accomplice liability. It simply cannot be said that the defendant's "presence was inextricably linked to the drug sale itself." (People v Bello, supra at 527.) Moreover, as written, the information fails to establish even that the defendant was "acting as a source of general information" (People v Bello, supra at 527), a showing which the First Department has found insufficient to establish accomplice liability in a drug sale. (See People v Lopez, supra ; People v Rosario, supra .) For these reasons, the People have failed to allege facts sufficient to establish that the defendant acted in concert with his codefendants to commit the offense of criminal sale of marijuana in the fourth degree or criminal possession of marijuana in the fifth degree. (See Penal Law § 20.00.) Accordingly, the defendant's motion to dismiss the information as facially insufficient is granted. In light of the court's determination of the motion to dismiss, it does not rule on the defendant's motion to suppress physical evidence and identification testimony or his Sandoval motion.