People v Fogg

[*1] People v Fogg 2006 NY Slip Op 52429(U) [14 Misc 3d 1206(A)] Decided on October 26, 2006 County Court, Essex County Meyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 26, 2006
County Court, Essex County

The People of the State of New York,

against

Michael Fogg, Defendant.



3967



(Appearances: Julie A. Garcia, Esq., Essex County District Attorney (Robert M. Winn, Esq., of counsel), Elizabethtown, New York; Gregory LaDuke, Esq., Attorney for Defendant, Lake Placid, New York)

Richard B. Meyer, J.

Omnibus motion by the Defendant for dismissal or reduction of the indictments filed on May 15, 2006, and for other relief in the nature of discovery, suppression and preclusion of evidence, and the scheduling of hearings in connection therewith.

Defendant is charged by a two separate indictments with two counts of Criminal Sale of a Controlled Substance in the third degree, a class B felony, in violation of Penal Law §220.39(1); two counts of Criminal Possession of a Controlled Substance in the third degree, a class B felony, in violation of Penal Law §220.16(1), and one count of Conspiracy in the fourth degree, in violation of Penal Law §105.10, a class E felony. The charges arise out of incidents alleged to have taken place on March 26, 2006 and April 7, 2006 in the Village of Lake Placid, Essex County, New York at which time the Defendant allegedly possessed and sold cocaine.

Upon the motion papers, the minutes of the proceedings before the grand jury, the indictments and such other papers on file with the Court, and the proceedings heretofore had herein, and due deliberation having been had thereon, the decision and order of the Court on Defendant's omnibus motion is as follows:

I.DISMISSAL OF INDICTMENTS [*2][*3]

Defendant seeks dismissal of the indictments on the grounds that (1) the indictments are defective and do not substantially conform to the requirements of CPL Article 200 (CPL §210.20[1][a], §210.25), (2) the evidence before the grand jury was not legally sufficient to establish the offenses charged or any lesser included offense (CPL §210.20[1][b]), and (3) the grand jury proceeding was defective (CPL §210.20[1][c], §210.35) Defendant also moves pursuant to CPL §210.20(1-a) and §210.30 for the Court to examine the grand jury minutes and thereafter, if appropriate, dismiss or reduce one or more counts of the indictments.

The Court has examined the indictments for form and content in compliance with CPL §200.50, and Count III of Indictment No. 06-058, charging the Defendant with Conspiracy in the fourth degree, is defective. The allegations of that count fail to identify the object B or C felony which the Defendant is alleged to have conspired to commit, do not state any facts from which identification of such a felony can be made, nor contain any reference to any named individual with whom Defendant is alleged to have conspired to commit such unspecified felony. Due to the failure of the People to make sufficient factual assertions as to the each and every element of the criminal conduct charged therein (CPL §200.50[7], a deficiency not cured by the People's bill of particulars, Count III of Indictment No. 06-058 is dismissed.

The Defendant's motion to inspect the grand jury minutes is granted. Upon inspection, the minutes of the grand jury indicate that the grand jury was legally constituted, was conducted before more than sixteen grand jurors and that at least twelve grand jurors concurred in the finding of the indictments.

However, based upon the facts presented to the grand jury, the District Attorney should have instructed the grand jury on the law pertaining to the exculpatory agency defense relative to Counts I and II of Indictment No. 06-058 (CPL §190.25[6] and §210.35[5]; People v. Valles, 62 NY2d 36, 476 NYS2d 50, 464 NE2d 418; People v. Calbud, Inc., 49 NY2d 389, 426 NYS2d 238, 402 NE2d 1140). Unlike exculpatory evidence, which a prosecutor is not required to present to a grand jury (see People v. Mitchell, 82 NY2d 509, 605 NYS2d 655, 626 NE2d 630), "an exculpatory defense, which would wholly vitiate criminal liability, must be charged where the evidence would reasonably support it" (People v. Ortiz, 188 AD2d 389, 390, 591 NYS2d 385, 386). "As noted in People v. Sierra, 45 NY2d 56, 407 NYS2d 669, 379 NE2d 196, People v. Lam Lek Chong, 45 NY2d 64, 407 NYS2d 674, 379 NE2d 200 and People v. Argibay, 45 NY2d 45, 407 NYS2d 664, 379 NE2d 191, the underlying theory of the agency defense in drug cases is that one who acts as procuring agent for the buyer alone is a principal or conspirator in the purchase rather than the sale of the contraband. [footnote omitted] Since the thrust of our statutes, as consistently construed, is not directed against purchasers, an individual who participates in such a transaction solely to assist a buyer and only on his behalf, incurs no greater criminal liability than does the purchaser he aids and from whom his entire standing in the transaction is derived. Specifically, without more he may not be treated as an accomplice of the seller (see People v. Pasquarello, 282 AppDiv. 405, 123 NYS2d 98, affd. 306 NY 759, 118 NE2d 361; see, also, People v. Catterall, 5 WashApp. 373, 486 P2d 1167; 23 CJS Criminal Law s 798 (16), (18), (20))." (People v. Roche, 45 NY2d 78, 82, 407 NYS2d 682, 685, 379 NE2d [*4][*5]208, 211-212)

Here, a reasonable view of the evidence establishes that the elements of the agency defense were presented to the grand jury. The confidential informant working with law enforcement testified that on April 7, 2006 he had asked the Defendant to get him "an 8-ball" (approximately three and a half grams of cocaine) and the Defendant said he could do so. The informant told the grand jury that later in the evening the Defendant met him at his place of employment in the Village of Lake Placid, Essex County, New York. He told the grand jury that when the Defendant arrived, driven by an third individual, the Defendant told the informant that they were going to have to go to Saranac Lake to get the cocaine at the home of one Ben Sirman. The informant testified that the Defendant placed a cellular phone call to Mr. Sirman to ensure he would be home, and then the informant and Fogg were driven to Saranac Lake, followed by an undercover police officer. Upon arriving in Saranac Lake, the informant stated that the Defendant "jumped out of the car" with the money that the informant had given to him in Lake Placid, and went into Sirman's residence. The informant also testified that he witnessed no transaction or exchange between the Defendant and anyone else, and that when the Defendant returned to the car the Defendant "took a little bit...off the top" of the bag of cocaine for himself as had been previously arranged with the informant "in order for setting up the deal".

The undercover police officer testified only that he witnessed an exchange of something between Sirman and the Defendant at the bottom of the stairs outside Sirman's building, but he could not identify what was exchanged. The officer also told the grand jury he saw the Defendant re-enter the building and later come up an alley from the rear of the building back to the street. He next saw the informant back at the informant's place of employment in Saranac Lake.

A reasonable view of this grand jury testimony indicates that an agency defense exists in that the informant and the Defendant were known to each other before the transaction, the Defendant did not initiate or promote the alleged sale, and the Defendant received no real benefit from his participation in the transaction other than an incidental benefit consisting of a small share of the cocaine (see People v. Lam Lek Chong, 45 NY2d 64, 407 NYS2d 674, 379 NE2d 200). Based on the facts presented, the grand jury should have been instructed as to the agency defense (see People v. Powell, 12 AD3d 932, 786 NYS2d 584, leave to appeal denied 4 NY3d 802, 795 NYS2d 177, 828 NE2d 93; People v. Delaney, 309 AD2d 968, 765 NYS2d 696; People v. La Voie, 304 AD2d 857, 757 NYS2d 616; People v. Bethea, 73 AD2d 920, 423 NYS2d 244; People v. Tiller, 61 AD2d 916, 402 NYS2d 841).

Since neither possession offenses nor criminal facilitation are lesser included offenses to sale offenses (see People v. Biggs, 280 AD2d 484. 721 NYS2d 364, leave to appeal denied 96 NY2d 797, 726 NYS2d 375, 750 NE2d 77; People v. Glover, 57 NY2d 61, 453 NYS2d 660, 439 NE2d 376; People v. Brown, 193 AD2d 751, 597 NYS2d 726), there is no lesser included offense for Count I of the Indictment charging the Defendant with criminal sale of a controlled substance in the third degree (PL §220.39[1]), and that count of Indictment No. 06-058 must be dismissed, subject to resubmission of that count to a grand jury within thirty (30) days of this decision. However, criminal possession of a controlled substance in the seventh degree (PL §220.03) is a lesser included offense of Count II in the Indictment charging the Defendant with [*6][*7]criminal possession of a controlled substance in the third degree (see People v. Tineo, 16 AD3d 165, 790 NYS2d 452). Thus, Count II of that indictment is dismissed unless within thirty (30) days of this decision the District Attorney files a reduced indictment charging the Defendant with criminal possession of a controlled substance in the seventh degree (PL §220.03), or resubmits the charge in Count II to another grand jury, or otherwise proceeds pursuant to CPL §210.20(6).

Conversely, the Defendant's motion to dismiss the counts contained Indictment Number 06-057 on the grounds that the grand jury proceeding was defective is hereby denied. In determining whether sufficient evidence has been presented to the grand jury, the evidence must be viewed in a light most favorable to the prosecution and, if unexplained and uncontradicted, constitute prima facie proof such as would warrant a conviction after trial (People -v- Swamp, 84 NY2d 725, 730, 622 NYS2d 472, 474, 646 NE2d 774, 776). Inspection of the grand jury minutes reveals that the evidence was sufficient to support each and every count in the indictments. Although some facts are present which, together with other facts may indicate that the agency defense is applicable here the informant testified to the grand jury that he went to the Defendant's place of employment, gave the him $160.00, the Defendant went out back and met someone else and then returned about five minutes later with two grams of cocaine these facts alone are not sufficient for this Court to determine that the agency defense should have been charged to the grand jury. Defendant is not precluded from raising such defense at trial.

II.SUPPRESSION OF STATEMENTS (HUNTLEY)

The Defendant seeks a Huntley hearing (People -v- Huntley, 15 NY2d 72, 255 NYS2d 838, 204 NE2d 179) to determine the voluntariness of the statements allegedly made by the Defendant to law enforcement. In their response to the motion, and in both replies to the Defendant's demands for discovery, the People claim that the only statements of the Defendant consist of tape-recorded conversations between the Defendant and the confidential informant, which recordings the People intend to offer into evidence at trial. Defendant's motion is denied since no Huntley hearing is required as "there can be no question that the statements made by defendant were involuntary within the meaning of CPL §60.45(2)" (Id.).

Moreover, the requirements of CPL §710.30 do not apply to tape recordings "of the actual criminal transactions in which Defendant was a willing participant" (People -v- Evans, 17 AD3d 861, 862, 793 NYS2d 278, 280), and therefore no notice under that statute is required to be served.

III.SANDOVAL / VENTIMIGLIA / MOLINEUX

The People are required, immediately prior to the commencement of jury selection and upon request of the Defendant, to notify the Defendant of all specific instances of a Defendant's prior uncharged criminal, vicious or immoral conduct of which the People have knowledge and which the People intend to use at trial for purposes of impeaching the credibility of the Defendant (CPL §240.43). Similarly, the Defendant may move prior to trial for an order limiting or prohibiting the use of Defendant's prior convictions to impeach his credibility as a witness (People v. Sandoval, 34 NY2d 371, 357 NYS2d 849, 314 NE2d 413), and in so moving the Defendant must specify the prior criminal acts for which a ruling is sought (see People v. Sandoval, supra at 378, 357 NYS2d at 856, 314 NE2d at 418; People v. Matthews, 68 NY2d 118, 123, 506 NYS2d 149, 151, 497 NE2d 287, 289). Thereafter, upon Defendant's request, the [*8][*9]trial court must conduct a hearing prior to the commencement of jury selection (CPL §240.43; People v. Sandoval, supra), and in the court's discretion it may direct that such notification, and the Court's determination as to admissibility, take place within a period of three days, not including Saturdays, Sundays and holidays, before the commencement of jury selection (CPL §240.43).

The People have not stated that they intend to offer evidence of Defendant's prior convictions or uncharged crimes as part of their prima facie case (People v. Molineaux, 168 NY 264, 61 NE 286; People v. Ventimiglia, 52 NY2d 350, 438 NYS2d 261, 420 NE2d 59), and it is indeed the prosecutor that bears the burden of requesting a hearing on this issue (People v. Valencia, 263 AD2d 874, 695 NYS2d 186).

The Court grants the Defendant's motion to the extent that not less than three days prior to commencement of jury selection, exclusive of Saturdays, Sundays and holidays, the People shall notify the Defendant of any uncharged crimes and prior convictions which the People intend to use at trial either as part of their prima facie case or to impeach the Defendant's credibility. At the time of the hearing Defendant bears the burden of specifying the particular prior convictions and instances of misconduct which he believes might unfairly affect him were he to testify. If a Ventimiglia hearing is requested by the People, and/or if the Defendant requests a Sandoval or Molineaux hearing, such hearing(s) shall be held so that a determination can be made by the Court within that three day period.

IV.DISCOVERY & PRE-TRIAL AUDIBILITY HEARING

Defendant moves for discovery of the undercover tape-recordings of the alleged transactions between the confidential informant and the Defendant, and for a pre-trial audibility hearing to determine whether all or any part of such recordings are audible and therefore admissible at trial. The People do not oppose such a pre-trial audibility hearing.

However, under CPL §240.20(g), the People are required to disclose to the Defendant and make available for inspection, copying or testing "[a]ny tapes or other electronic recordings which the prosecutor intends to introduce at trial, irrespective of whether such recording was made during the course of the criminal transaction". Notably, the People have not moved for a protective order pursuant to CPL §240.50(1), although the People have made such a request in their reply to the Defendant's discovery demands. An application for a protective order must be made by motion (CPL §240.50(1). Having represented to this Court and the Defendant that the tape recordings of the underlying transactions allegedly between the confidential informant and the Defendant are to be introduced at trial, the People are hereby directed to immediately disclose those tape recordings to the Defendant pursuant to this statute (see People -v- Shields, 82 Misc2d 275, 368 NYS2d 144; People -v- Di Matteo, 80 Misc2d 1029, 365 NYS2d 126). Disclosure shall be made, at the election of defense counsel, by permitting defense counsel to listen to the original tape recordings or by providing defense counsel with a true and complete copy of the recording; provided that in the latter event defense counsel shall not allow or permit the copy to be listened or disseminated to any persons other than the defendant, defense counsel and any expert retained by the defendant relative to the audibility and/or content of the recording.

As a result, Defendant's motion for an audibility hearing is denied without prejudice, but the Defendant is granted leave to renew the motion within twenty (20) days of disclosure of the tape recordings.

[*10][*11]V.HEARINGS

Defendant's motion requesting that any hearings granted be held sufficiently before the trial date so as to permit the preparation of transcripts is denied without prejudice to renewing the same should any future hearing be scheduled.

VI.OTHER RELIEF

To the extent that this Decision and Order has not addressed any request for relief in the Defendant's Omnibus motion, the same is hereby denied.

VII.TRIAL

The trial in the above matter is hereby scheduled for the January, 2007 trial term, with a pre-trial conference to be held on January 17, 2007 at 11:30 a.m.

IT IS SO ORDERED.

Decision and Order signed this 26th day of October, 2006, at Elizabethtown, New York.

ENTER

________________________________

Richard B. Meyer

Essex County Judge