        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1106
KA 12-00600
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GABRIEL DAVILA, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-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, of criminal sale of a
controlled substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed as a matter of discretion in the interest of
justice and on the law, the indictment is dismissed and the matter is
remitted to Supreme Court, Onondaga County, for further proceedings
pursuant to CPL 470.45.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of criminal sale of a controlled substance in the
third degree (Penal Law § 220.39 [1]). Defendant failed to renew his
motion to dismiss the indictment at the close of the People’s proof on
rebuttal and thus failed to preserve for our review his contention
that the evidence is legally insufficient to support the conviction
(see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). We
nevertheless exercise our power to review that contention as a matter
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 tried separately, in a sale of heroin. Viewing the evidence
in the light most favorable to the People (see People v Contes, 60
NY2d 620, 621), we conclude that there is no valid line of reasoning
or permissible inferences that “could lead a rational person to the
conclusion reached by the jury on the basis of the evidence at trial”
(People v Bleakley, 69 NY2d 490, 495).

     The evidence established that the police were conducting
surveillance of a two-family residence, which was owned by the
codefendant’s mother-in-law; the codefendant resided in the first-
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                                                         KA 12-00600

floor apartment and defendant’s father resided in the second-floor
apartment. Two police officers observed a woman approach a group of
men standing in front of the residence and observed defendant walk
with the woman partway up a long driveway that curved into a backyard.
Those officers also saw defendant and the woman subsequently have a
brief verbal exchange after walking back down the driveway, before the
woman departed. Another officer, who could view the back of the
house, observed defendant with the woman and the codefendant in the
backyard, but defendant was not with them when the sale was conducted
at the house and he did not see defendant again. The woman testified
that she approached the group of men in the front of the house and
asked for “montega,” which is slang in Spanish for heroin, and that
one of the men directed her toward the back of the house and walked
with her partway up the driveway where she met the codefendant. The
woman arranged the sale with the codefendant, and purchased the heroin
that the codefendant retrieved from the house. The police officer
viewing the back of the house observed the codefendant at the house
and a hand-to-hand exchange between the codefendant and the woman.
The woman was stopped by the police and packets containing a tan
powder that tested positive for heroin were recovered from her, and
the sum of $490 was recovered from the codefendant. Following a
search of the two-family home, the police recovered large quantities
of heroin from the first-floor apartment and the basement, which could
be accessed from the back porch or the second-floor apartment, as well
as heroin that was hidden in the backyard. The codefendant had keys
to both apartments. No drugs or money were recovered from defendant,
which a police witness testified was consistent with the role of the
“steerer,” who directed customers to the sale but did not handle the
drugs or money.

     “To establish an acting-in-concert theory in the context of a
drug sale, the People must prove not only that the defendant shared
the requisite mens rea for the underlying crime but also that
defendant, in furtherance of the crime, solicited, requested,
commanded, importuned or intentionally aided the principal in the
commission of the crime . . . The key to our analysis is whether a
defendant intentionally and directly assisted in achieving the
ultimate goal of the enterprise—the illegal sale of a narcotic drug”
(People v Bello, 92 NY2d 523, 526; see Penal Law § 20.00).

     We conclude that the evidence is legally insufficient to
establish that defendant acted in 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 AD3d 1596, 1597; see People v Johnson, 238 AD2d
267, 267, lv denied 90 NY2d 894; cf. People v Ellerbe, 228 AD2d 301,
302, lv denied 89 NY2d 921; People v Fonseca, 208 AD2d 399, 399; see
generally People v Herring, 83 NY2d 780, 783). “While this evidence
certainly demonstrated that the defendant was able to identify a local
purveyor of narcotics, it did not show . . . that he shared the
seller’s intent to bring the transaction about . . . [Indeed], by
merely responding to the [buyer’s] inquiry as to who had drugs for
sale, the defendant did nothing to solicit or request, much less
demand[,] importune[, or assist in] the illicit sale” (People v
                                -3-                          1106
                                                        KA 12-00600

Rosario, 193 AD2d 445, 446, lv denied 82 NY2d 708). We therefore
reverse the judgment of conviction and dismiss the indictment.




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
