PEOPLE v. RIDLEY (2019)

Issue:

1. Is the Indictment itself legally sufficient pursuant to CPL § 200.50(7).

2. Was the evidence presented to the Grand Jury legally sufficient to support the Conspiracy Second Degree (Penal Law § 106.15) charge against the Defendant pursuant to CPL § 210.20  ¹ .

Procedural status:

This matter comes before the Court by way of Defense Counsel's Motion to dismiss the Indictment on the basis that the Indictment lacks the specificity necessary to substantiate the factual basis for a conspiracy and overt acts as alleged against this Defendant in furtherance of a conspiracy, and that the Grand Jury presentation was legally insufficient to support the Indictment pursuant to CPL 200.50 (7).

Opinion:

CPL § 200.50 (7) in its pertinent part states:

“an indictment must contain [a] plain and concise factual statement in each count which asserts facts supporting every element of the offense charged and the defendant's or defendants' commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation.”

Defense counsel relies on People v. Fogg, 14 Misc 3d 1206A [2006] and People v. Reyes 31 NY3d 930 [2018 Court of Appeals] and People v. Cochran, 140 AD3d 1198 [2016 NY App. Div] in support of their application for dismissal. In People v. Fogg (supra, 14 Misc 3d 1206A) the Defendant, much like the Defendant in the case at bar, sought dismissal of the indictments on the grounds that the indictments were defective and did not substantially conform to the requirements of CPL Article 200 (CPL § 210.20[1][a], § 210.25), and also alleged that the evidence before the grand jury was not legally sufficient to establish the offenses charged. However, in Fogg, supra 14 Misc 3d 1206A, the Court examined the indictments for form and content in compliance with CPL § 200.50 and found that Count III of the Indictment charging the Defendant with Conspiracy in the fourth degree was insufficient, because the overt acts alleged did not state any facts from which identification of such a felony (the object felony of this conspiracy) could be made, nor did it contain any reference to any named individual with whom the Defendant was alleged to have conspired to commit such unspecified felony. The Court also found that 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, a deficiency which the Court noted was not cured by the People's bill of particulars. However, in the case at bar, the overt acts which this Defendant is alleged to have committed are set forth, and the individuals with whom the Defendant has conspired with are identified and named  ² . Also, the Indictment in the case at bar, specifies the felony, (Operating as a Major Trafficker (Penal Law § 220.77(1); that is the subject matter of the Conspiracy in the Second Degree (Penal Law 106.15).

In People v. Reyes, 31 NY3rd 930 (Court of Appeals 2018), the Court of Appeals found that the People's trial proof was based on evidence of defendant's presence at various gang meetings at which the crime intended was discussed by gang members other than defendant. In dismissing the Indictment/convictions, the Court of Appeals found that the evidence at trial was legally insufficient to support the conviction of Conspiracy in the Second Degree (Penal Law § 105.15) because, “there is [no] valid line of reasoning and permissible inferences from which a rational jury could have found the element of agreement proved beyond a reasonable.” The Court of Appeals held that the defendant's mere presence at such “gatherings” alone, was not sufficient to establish agreement to “join a plot”. The Court refused to equate the Defendant's passive act of “being present” with the affirmative act of “agreeing” to engage in a criminal conspiracy discussed at those assemblies. The Court of Appeals went on to state:

“the defendant must enter into a criminal agreement with at least one other person” (People v. Treuber, 64 NY2d 817). Once an illicit agreement is shown, the overt act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy “(Berkowitz, 50 NY2d at 341, quoting People v. McGee, 49 NY2d 48, [1979]).”

The case at bar is distinguishable in that the Court of Appeals dismissed the Indictment, after trial, because of a lack of quantum of evidence to prove an “overt act” “beyond a reasonable doubt” on the part of the conspirator Reyes. The evidence showed that Reyes was simply standing with a group of gang members when the crime was being discussed. The Court held that “passive standing” was not enough for a jury to connect the Reyes Defendant to the criminal conspiracy. Here in the present indictment it is alleged that this Defendant (Ridley) participated in the criminal drug conspiracy gathering with named conspirator and was caught on a “wire-tap” discussing a narcotics transaction with the co-conspirators. Whether there will be enough trial evidence based on this “wire-tap” and other evidence to convict this Defendant of Conspiracy in the Second Degree is a decision best left to the jury, and it is not a basis for dismissal of an Indictment pre-trial.

Finally, the Defense argues People v. Cochran, 140 AD3d 1198 [2016 NY App. Div. Third Dept.] in which the Defendant and numerous other individuals were arrested and charged with various crimes as a result of an investigation into the drug-related operations of the “Bloods” gang in Albany County. The case against defendant was largely based upon intercepted cellular telephone conversations and text messages between defendant and certain other codefendants, including Ronald Wright, with whom defendant was jointly tried (see generally People v. Wright, 139 AD3d 1094, [2016]). The recorded calls and text messages revealed, among other things, that defendant was engaged in trafficking heroin as part of a larger criminal enterprise controlled by the “Bloods”.

Following a jury trial, defendant was convicted of Enterprise Corruption, Attempted Criminal Possession of a Controlled Substance in the Third Degree and Conspiracy in the Second Degree, two counts Of Criminal Possession of a Controlled Substance in the Third Degree and 31 Counts of Criminal Sale of a Controlled Substance in the Third Degree. The Appellate Court Third Department reversed the Defendant's conviction for Conspiracy in the Second Degree, holding that the People's evidence was legally insufficient to prove his guilt beyond a reasonable doubt at trial. The Appellate Court Third Department stated:

“A person is guilty of Conspiracy in the Second Degree when, with intent that conduct constituting a class A felony be performed, he [or she] agrees with one or more persons to engage in or cause the performance of such conduct” (Penal Law § 105.15). Notably, “[a] person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy” (Penal Law § 105.20; see generally People v. Monday, 309 AD2d 977 [2003]).

However, unlike the case at bar, the Cochran Indictment was dismissed after a jury trial, as the Court found that the Jury had not been given sufficient evidence which would convict the Cochran co-Conspirator/Defendant “beyond a reasonable doubt.” In the case at bar, the proof of whether this Defendant's overt acts are sufficient to convict him “beyond a reasonable doubt” is yet to be determined by a jury, and is not a basis for dismissal of the Indictment or the Grand Jury Presentation under CPL Article 200. In other words, the present Indictment is facially sufficient in form and in specificity pursuant to CPL § 200.50 (7).

In the case at bar, the defendant's argument that the Indictment is facial sufficiency is without merit, as each count of the Indictment is specific in its statement of the charges and each statement is sufficient to put the defendant on notice of that with which he is charged. The tracing of the statutory language of the Penal Law in an indictment is a commonly accepted practice that has received judicial recognition and has been upheld where the underlying statute sufficiently particularizes the essential elements of the crime and informs the defendant of the nature of the crimes charged. (See People v. Iannone, 45 NY2d 589, 599 [1978]; People ex rel. Guido v. Calkins, 9 NY2d 77, 81 [1961]; People v. DiNoia, 105 AD2d 799, 800 [1984]; People v. Piening, 99 AD2d 583 [1984]). The controlling factor in upholding an indictment, is whether it informs a defendant of the nature of the charges against him. See People v. Fitzgerald, 45 NY2d 574 [1978 Court of Appeals].) Here the Indictment by tracking the statutory language of Penal Law § 106.15 sufficiently informs the Defendant of the crimes charged in accordance with CPL § 200.50(7).

In People v. DiNoia, 105 AD2d 799, supra, two criminal appellants sought review of the Westchester County Supreme Court decision convicting them of Rape in the Third Degree after a non-jury trial. The Appellants were accused of engaging in sexual intercourse with a female who was incapable of consent due to being mentally incapacitated. On appeal, the Appellants challenged the sufficiency of the form of the Indictment, arguing that the language was too vague and that the bills of particulars failed to sufficiently amplify the Indictment. In affirming the lower court's decision, the Second Department Appellate Court stated:

“an indictment is sufficient if it charges each and every element of the crime and alleges that the defendants committed the acts at a specified place during a specified period of time.”

In the case at bar, the Court finds that the present Indictment is sufficient in form since it sets forth the statutory language this co-conspirator/Defendant is accused of and specifies a time and a location. There is no requirement for the Indictment to charge in detail each and every facet of the Defendant's involvement so long as the Defendant is apprised of “each and every element of the crime that the Indictment alleges and that the defendant committed the acts at a specified place during a specified period of time” (see People v. DiNoia, 105 AD2d 799, 800 [1984] supra.)

Once an illicit agreement is shown, the overt act of any conspirator may be attributed to other conspirators in establishing the offense of conspiracy. The Crime of Conspiracy is a secretive offense which by its very nature does not lend itself to detail. The Defense complains that the Indictment lacked specificity to the extent that counsel is unable to properly prepare and to defend this Defendant. The remedy for the lack of specificity is to request a “Bill of Particulars” with regard to this Defendant's charges. It should be noted here that the Defense has not requested a “Bill of Particulars” from the People which may “fine-tune” the charges as they relate to this Defendant with more specificity.

Here the Indictment, in numerous counts, names the Defendant, identifies the co-conspirators with whom the Defendant is alleged to have conspired; sets forth the elements of the crimes charged, as well as the period of time and location of the alleged crimes. The Indictment charges the Defendant's participation in the conspiracy pursuant to which the narcotics of heroin and cocaine were to be distributed in Sullivan County, and the weight of those drugs being in excess of the threshold weight required to establish the crime of Criminal Possession of a Controlled Substance in the First Degree, thus satisfying all statutory elements required to establish defendant's charges of Conspiracy in the Second Degree. This sufficiently conforms with the requirements of the Criminal Procedure Law § 200.50 (7). Defendant's bare arguments that the indictment fails to conform to CPL § 200.50 (7) are insufficient to dismiss the Indictment.

With respect to the Grand Jury legal sufficiency of this Indictment, as part of the Defendant's Omnibus Motion relief, the People consented to an in camera inspection of the Grand Jury minutes by the Court and the Court has reviewed the Grand Jury minutes. This Court finds that the evidence submitted to the Grand Jury was legally insufficient, and that the People had put forth a legally sufficient quantum of evidence in the Grand Jury, sufficient to sustain this indictment. Furthermore, in seeking a dismissal of an Indictment, the defendant is required to demonstrate a “clear showing that the evidence presented before the Grand Jury, if unexplained and uncontradicted, would not warrant a conviction by a trial jury.” See People v. Scott, 131 AD2d 893, 894 [1987]. Here there is not such a showing by the Defendant. Also, the defendant must overcome the presumption of validity that attaches to Grand Jury indictments. See People v. Green, 80 AD2d 995 [1981]; People v. Easton, 45 AD2d 863 [1974]; People v. Jackson, 32 AD2d 590 [1968]). This Court's review of the Grand Jury Transcript has shown a sufficient quantum of evidence presented to overcome the presumption of validity.

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 [1994 Court of Appeals]). In reviewing the sufficiency of the evidence, a court must be ever cognizant of the principle that the task of weighing the evidence rests solely with the Grand Jury. See People v. Cole, 97 AD2d 886 [1983]). When reviewing the Grand Jury Proceedings, the Court's function is to determine if there is “competent evidence which, if accepted as true, would establish every element of the offense charged and the defendant's commission thereof. (see C.P.L. Section 70.10(10.)

The Court has reviewed the Grand Jury Proceedings/minutes, in the light most favorable to the People, and finds that the evidence was sufficient to support each and every count in the Indictment.

This Court finds that the Indictment is legally sufficient in form, and that the Indictment adequately apprises the Defendant of the charges against him.

Therefore, the defendant's Motion to Dismiss the Indictment for facial insufficiency and for the legal insufficiency of the Grand Jury is denied.

This shall constitute the Decision and Order of this Court.

FOOTNOTES

1.   The Defendant Daniel Ridley is charged in a sixteen (16) Count Indictment with thirteen (13) other co-defendants, with 2 Counts of Operating as a Major Trafficker (Penal Law § 220.77(1); and with 3 counts of Conspiracy in the Second Degree (Penal Law § 106.15.)

2.   The Defendant and his co-conspirators are named in several counts of the Indictment #238-2018.

Frank J. LaBuda, J.