People v Lampkin

[*1] People v Lampkin 2007 NY Slip Op 51439(U) [16 Misc 3d 1116(A)] Decided on July 13, 2007 Supreme Court, Bronx County Riviezzo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 13, 2007
Supreme Court, Bronx County

The People of the State of New York

against

Kevin Lampkin, Defendant.



3966/2006



For the People

District Attorney, Bronx County, by

Candace C. Brooks, A.D.A., Bronx County, Narcotics Bureau

718 590 2426

For the defendant

Barry F. Weiss

20 South Main Street

New City, NY 10956

845 638-0044

Dineen A. Riviezzo, J.

Defendant stands indicted of one count of criminal facilitation in the fourth degree, following an undercover "buy and bust" operation, during which defendant and another individual allegedly sold crack cocaine to an undercover police officer on October 9, 2006. By omnibus motion, defendant moves for a variety of relief.

For the reasons which follow, defendant's motion to inspect the Grand Jury minutes is granted. Upon an examination of the minutes of the grand jury proceedings, I find that the evidence before the Grand Jury was legally insufficient to establish the offense charged (see, CPL §§190.65, 210.20, 210.30).

The Grand Jury Proceedings

Defendant Lampkin is charged with facilitating a felony with respect to a "buy and bust" operation, in that, as reflected in the indictment "the defendant Kevin Lampkin . . . believing it was probable that he was rendering aid to Tristan Phillip, a person who intended to commit a crime, did engage in conduct which provided such person with the means or opportunity for the commission thereof and which in fact aided such person to commit a felony." With the respect to the events underlying the indictment, the grand jury minutes contain the following testimony by the undercover officer, which constitutes all of the evidence as to the defendant's conduct on October 9, 2006:

"I approached J.D. Black [defendant Lampkin] and asked him if anybody was out. J.D.Black stated to me that he was looking too. So then we went together to the front of 1930 Grand Concourse. At that point in time we met with J.D. Green [Tristan Phillip], and J.D. Green stated to us to go inside the building. So then we went inside the building. I went in the rear with J.D. Black and J.D. Green. We walked to the rear of the building to the first floor, up one flight of stairs. At that point in time J.D. Green stated to me, "How many do you want?" I stated to him, "Two." He then handed me two glassines which contained alleged heroin which was ink-stamped, "Magic." I then handed J.D. Green $20 prerecorded buy money. At that point in time, as we were leaving, J.D. Black stated to me that I had to like "hook him up." He then took one glassine from my hand."

Both defendant and the person identified as J.D. Green were subsequently apprehended by other officers, and identified by the undercover officer. The contents of the glassine envelope were field tested and determined to be heroin. J.D. Green was indicted for the sale of the heroin. As [*2]noted above, based on the foregoing testimony, the grand jury voted an indictment charging defendant Lampkin with one misdemeanor count of criminal facilitation in the fourth degree (P.L. 115.00 [1]).

Discussion

In determining the legal sufficiency of an indictment, the court's inquiry is limited to assessing whether the facts, if proven, and the logical inferences flowing therefrom, supply proof of each and every element of the charged crimes. (See People v Bello, 92 NY2d 523, 526, 705 NE2d 1209, 683 NYS2d 168 [1998]; People v. Garson, 6 NY3d 604, 848 NE2d 1264, 815 NYS2d 887 [2006].) CPL § 70.10 (1) defines legally sufficient evidence as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof." In other words, legally sufficient evidence establishes a prima facie case, not proof beyond a reasonable doubt. The court must view the evidence in the light most favorable to the People, and determine whether that evidence, if presented at trial, otherwise unexplained and uncontradicted, and irrespective of innocent inferences arising from the evidence, would be sufficient to support a guilty verdict by a petit jury. (See People v Jensen, 86 NY2d 248, 654 NE2d 1237, 630 NYS2d 989 [1995].)

The evidence before the grand jury does not establish a prima facie case of the crime of criminal facilitation. Penal Law § 115.00 (1) provides, "A person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid: 1. to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony . . . " The elements of the crime have been summarized as follows: "There are three elements to the offense: (1) the actor must have had a belief that it was probable that he or she was rendering aid to a person intending to commit a crime; (2) he or she must have engaged in conduct which provided the means or opportunity for the commission of the crime; and (3) his or her conduct must have been such that it did, in fact, aid the other to commit a felony." (Matter of Luis O., 29 AD3d 377, 815 NYS2d 57 [1st Dept. 2006] [citations omitted] [evidence was not legally sufficient to establish that appellant facilitated a sale to the undercover or aided commission of sale by merely walking behind the seller and the undercover officer].)

Initially, the court observes that there is no evidence that the defendant lead or directed the undercover officer to the location where the drug sale was consummated. There is no evidence from which any inference can be drawn that the defendant even knew where he and the undercover officer were headed, nor that he touted the drugs that were to be purchased, took an active role in locating the seller, brokered the transaction or engaged in any other "salesmanship." The testimony was merely that defendant accompanied the undercover officer as he searched for narcotics. Defendant's conduct was thus not shown to be consistent with that of a "steerer" in a drug transaction, much less of a person who facilitates a sale by rendering aid to the seller. (See People v. Herring, 83 NY2d 780, 632 NE2d 1272, 610 NYS2d 949 [1994].)

In Matter of Luis O. (supra , 29 AD3d 377, 815 NYS2d 57 [1st Dept. 2006]), an undercover police officer testified that he encountered appellant and appellant's cousin Rosado, and asked if they had any heroin. The officer testified that Rosado stated, "Yes, walk with me." Another alleged buyer approached, and upon Rosado's instructions, appellant followed this unidentified individual to an ATM machine to make certain that he did not summon police [*3]officers. The officer further testified that he was not looking at and could not see appellant when he purchased the heroin from Rosado, as the appellant was walking four or five feet behind them; nor did the undercover officer at any time observe the unidentified individual purchase drugs. The Appellate Division found that this evidence did not legally establish that appellant's conduct aided his cousin to commit a felony. As the court observed, "By merely walking behind Rosado, appellant's conduct did not, in fact, aid Rosado to commit that felony."

In the instant case, defendant was not standing near or in proximity to the seller, so as to give rise to an inference that he aided in the sale. Instead, as noted above, the evidence was that the defendant, similar to the situation in Matter of Luis O., merely accompanied the officer to the location where the sale occurred. There is no evidence that the defendant spoke to J.D. Green, signaled to him, or otherwise assisted him in the sale of the heroin. Defendant did not handle the money, transfer the drugs, or make any statement to assist in the transaction. The present facts simply do not establish that defendant facilitated the sale.

The foregoing discussion is based on the allegations in the indictment which indicate that the theory of the prosecution is that the defendant believed that it was probable that he was rendering aid to a person intending to commit a crime, i.e., J.D. Green, the actual seller of the heroin. In People v. Collins (2005 NY Misc. LEXIS 3605, 234 N.Y.L.J. 109 [Criminal Court of the City of New York, Kings County]), the court found that a prima facie case of facilitation was established under the theory that the defendant was aiding the undercover officer. In Collins, the defendant was approached by an undercover officer and asked "Who's out with krills [i.e., crack cocaine]?" Defendant pointed to a man standing nearby and said, "Go with him." The sale was then effectuated. These facts were held to establish a prima facie case of facilitation on the theory that the defendant aided the undercover officer (as opposed to the seller) in the commission of a crime (the possession of narcotics). Collins is clearly distinguishable from the instant case both factually (since the defendant Lampkin did not point out or otherwise identify the seller), and legally, as it is premised on a theory not advanced here i.e., that the defendant aided the undercover officer in the commission of a felony.[FN1]

In view of the absence of evidence that the defendant identified the seller as a person from whom drugs could be purchased, defendant did not provide the undercover officer with the means or opportunity for the commission of a felony. (See People v. Llanos, 77 NY2d 866, 570 NE2d 1072, 568 NYS2d 723 [1991] [defendant was not guilty of criminal facilitation in the fourth degree when she yelled "police" and warned occupants of an apartment that police officers, armed with warrant, were approaching; there was no evidence that defendant's conduct enabled the occupants to possess the contraband for any period longer than they would have had defendant done nothing, and defendant therefore did not provide the means or opportunity for the commission of the object felony.])

Lastly, the court notes that the defendant essentially helped himself to a "tip" consisting of some of the drugs by snatching them from the undercover officer's hand. However, in view of the lack of evidence that defendant provided the means or opportunity for the sale, or otherwise participated in the sale, his mere receipt of a part of the heroin, standing alone, does not [*4]constitute evidence of facilitation. While the evidence may show that defendant acted out of an interest in acquiring drugs for himself, that intent, when he did not otherwise provide the means or opportunity for, or otherwise aid in the sale, does not subject him to criminal liability for facilitation.

Conclusion

The indictment is dismissed with leave to re-present. The remaining relief sought is denied as academic.

This constitutes the decision and order of the Court.

Dated:7- 13-07/s/

J.S.C.

Appearances

For the People

District Attorney, Bronx County, by

Candace C. Brooks, A.D.A., Bronx County, Narcotics Bureau

718 590 2426

For the defendant

Barry F. Weiss

20 South Main Street

New City, NY 10956

845 638-0044 Footnotes

Footnote 1:Therefore, the court need not address the validity of the legal theory that the defendant aided the undercover officer as opposed to the seller.