The matters before the Criminal Court on the defendants’ motions to dismiss the charges against them of criminal solicitation in the fifth degree on the ground that there exists some jurisdictional or legal impediment to the defendants’ conviction and on the ground that the accusatory instruments are defective. For the reasons set forth below, the Court grants the motions to dismiss the charges of criminal solicitation in the fifth degree.
A New York Criminal attorney said that all of the defendants were arrested on various streets in the Northeastern section of the City of Rochester allegedly attempting to buy small amounts of marijuana. Those streets, among them Hudson and Conkey Avenues and Berlin Street, have become known as open-air drug markets where marijuana, and in some areas cocaine and heroin, can be purchased on the streets. Those who live and work in those areas have become frustrated at the misuse of their neighborhoods for drug activity, that activity bringing with it increased public safety concerns for themselves and their families.
The potential for violence in connection with the open-air drug trafficking was illustrated and underscored in January 1995 with the murder of an individual, a resident of the surrounding suburb of Penfield, New York, was shot to death while reportedly attempting to purchase marijuana in one of these open-air drug markets on Berlin Street.
In response to the public safety concerns of the neighborhoods, and in direct response to the murder, the City of Rochester Police Department in January of 1995 began to station undercover police officers on the various streets with reputations for being open-air drug markets. Those officers then arrested individuals who approached them attempting to buy marijuana and other drugs. In these cases before the Court, all of the defendants were charged with criminal solicitation in the fifth degree, a violation punishable by a maximum of 15 days in jail. The information allege either that the defendants were soliciting the officers to sell them marijuana, or were attempting to buy a “marijuana-type substance” or “fake” marijuana.
The Court applauds the interest of the neighbors and the police and their determination to eliminate those open-air drug markets.
Unfortunately, the laws of the State of New York do not include any statute or combination of statutes that would allow for the prosecution of these defendants for the conduct alleged. On the contrary, the exemption statute in the section of the Penal Law that governs prosecutions for criminal solicitation states specifically that under certain situations “A person IS NOT GUILTY of criminal solicitation”. For this reason, as is more fully set forth below, the defendants’ motions to dismiss the charges of criminal solicitation in the fifth degree must be granted in those cases where the informations allege the defendants solicited the undercover police officers to sell them marijuana. The cases in which the informations allege the defendants were attempting to buy a “marijuana-type substance” or “fake” marijuana are dismissed because the informations are defective. The two types of informations, and the two separate grounds for dismissal.
“A person is guilty of criminal solicitation in the fifth degree when, with intent that another person engage in conduct constituting a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.
In order for a person to be found guilty of any degree of criminal solicitation, it is not necessary that the person solicited engage in any criminal activity or even any preparation for any criminal activity. The gravamen of criminal solicitation is the request or other attempt by the defendant to the person solicited to engage in criminal conduct.. In the instant cases in which the allegations are that the defendants solicited the undercover officers to sell them marijuana the people have alleged the necessary elements.
Unfortunately, the inquiry does not end there. The criminal solicitation section of the Penal Law contains an exemption provision that must be considered in determining whether or not a defendant may be found guilty of any degree of criminal solicitation, in this case the fifth degree. That exemption is the result of a determination by the State Legislature that not all requests of another to engage in conduct constituting a crime would be punished as criminal solicitation.
Section 100.20 Criminal solicitation, exemption: A person is not guilty of criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime solicited. When under such circumstances the solicitation constitutes an offense other than criminal solicitation which is related to but separate from the crime solicited, the actor is guilty of such related and separate offense only and not of criminal solicitation.
The exemption statute mandates that a person IS NOT GUILTY when the conduct of that defendant in the solicitation is “necessarily incidental” to the commission of the crime solicited. In these cases, therefore, the question is whether the requests by the defendants to the undercover police officers to sell them marijuana are “necessarily incidental” to the sale of marijuana, since it is the sale of marijuana that is alleged to be the criminal conduct that the defendants are trying to get another person to engage in.
That the exemption provision in the Penal Law, § 100.20, prohibits these prosecutions is further underscored by the case law. There is no reported case where a court at any level has ruled that a defendant may be found guilty of criminal solicitation in the fifth degree on the basis of the activity alleged in these cases. The facts of that case are analogous to the present ones. The accessorial liability provisions of the penal law, like the criminal solicitation provisions, have an exemption provision at § 20.10 that a person may not be criminally liable for an offense committed by another, ” ‘when his own conduct, though causing or aiding the commission of such offense is of a kind that is necessarily incidental (to the commission of the offense)’ See, Penal Law § 100.20.”
“Since the offense of criminal possession of a controlled substance does not contemplate or require, in all circumstances, participation of another, the argument goes, the defendants’ conduct in either “intentionally aiding” or “aiding or abetting” another to possess drugs is not “of a kind” that is “necessarily incidental” thereto, and thus § 20.10 is not applicable.
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