New York Criminal Lawyer Blog
The complainant is a college student living in Long Island and working part-time as a bartender, telephoned one man in Florida with the hope of using $50,000 in his possession to become involved in the sale of drugs. Although negotiations were carried on through at least two telephone conversations and the student’s two trips to Florida in order to meet the man, the student asserted at his examination before trial that no deal was consummated. The reason, it is claimed, is that the student was too scared.
Days later, the student and two passengers in his car were arrested in Brooklyn and charged with heroin possession and reckless endangerment. The arrest was made only after a chase by an unmarked police car. The student claims that the officers did not identify themselves as police and he was unaware who they were until a red flasher was placed atop the unmarked vehicle and the student’s car was blocked by a marked patrol car. He claims to have fled (at thirty miles per hour) because he had his money in the trunk of the car and feared that the men in the unmarked car were going to rob him. The arresting officer, however, states that he identified himself as a police officer and ordered the student to stop his car, after which the student fled. The pursuit says the officer was of a speeding Porsche through several red lights.
As the Porsche came to a stop, thirteen glassine envelopes, later found to contain heroin, were thrown from its passenger window. The search of the vehicle revealed a trunk containing, among other things, $64,580 in cash.
The complainant student has stated in his examination that he did not purchase any drugs on the date in question, that he did not see the envelopes being thrown out the window, and that he first learned about a week later in court that thirteen glassine envelopes had been found. The complainant student contends that since the drugs were thrown from the passenger window while he was driving, there is no indication that he possessed any drugs. This, it is claimed, must be shown in order to sustain the forfeiture of the vehicle. The defendant asserts, however, that the student knew there was heroin in his car and probably told one of his passengers to throw it out the window.
With respect to seizure of the money, the student argues that his conduct in Brooklyn must be sufficient to uphold a criminal conviction in such jurisdiction. He contends that his telephone conversations and meetings in Florida fail to constitute either an attempt to possess or sell drugs, a conspiracy to do so, or a solicitation of such crime. The defendant insists that the student’s conduct was sufficient to constitute the above drug crimes.
The complainant student has admitted knowing that one of his passengers used heroin, that the other passenger could be assumed to be a heroin user and that on other occasions he had purchased drugs in the neighborhood where he was arrested. The defendant asserts that this, in addition to the inference of guilt from his flight, suggests that the student knew that there was heroin in his car. On the other hand, the student has denied such knowledge, though somewhat equivocally. Ordinarily, the issue of whether the complainant had the requisite knowledge would create a triable issue precluding summary disposition.
However, the complainant student’s asserted ignorance of the drugs in his car is relevant only to his defense under the Public Health Law. Since forfeiture may be obtained under the Administrative Code where property is employed in aid or furtherance of crime, and is not limited to felonies or drug offenses, the proffered defense is irrelevant where the existence of another crime is apparent.
From the record herein there is no question that the complainant pleaded guilty to the crime of reckless endangerment in connection with the car chase preceeding his arrest, in satisfaction of both reckless endangerment and drug charges. Although the defendant’s first and second counterclaims allege that the forfeiture is predicated upon drug-related offenses, judgment may be granted on the un-pleaded allegation of reckless endangerment, since the complainant student acknowledges such plea in his moving papers and he has not been misled to his prejudice.
Furthermore, even as to the attempted heroin possession of a controlled substance, the student’s deposition testimony admits such attempt and no triable issue has been raised regarding said drug crime.
Forfeiture of the money is sought pursuant to the Administrative Code as proceeds of a drug crime or as having been used as a means of aiding and furthering a crime, namely the purchase and/or sale and crack possession. Much of the examination of the student was concerned with these two issues as the defendant sought to determine the source of the funds in order to ascertain whether the money constituted proceeds, as well as to determine whether the funds were the same as those transported from New York to Florida in the aborted drug transaction with the man and therefore used in aiding and furthering the crime. In his deposition, the student acknowledged that the money found in the trunk of his car at the time of his arrest was the same money he took with him to Florida and showed the man.
The student purported to identify the banks from which the money had been withdrawn, asserting that the source of the funds was an inheritance. On this motion for summary judgment, the defendant has failed to question the student’s credibility or offer an alternative theory as to the source of the funds. There is therefore no issue as to whether the money constituted proceeds from prior sales of drugs.
The student advances a two-pronged argument with respect to his alleged use of the money in aid and furtherance of a crime. First, with respect to the unexecuted drug transaction in Florida, the complainant contends that his alleged conduct in New York was insufficient to constitute a crime in Bronx. It was held that New York lacks jurisdiction over a crime consummated elsewhere if the conduct in the state does not reach the point of an attempt to commit the crime. Second, the complainant argues that even if New York did have jurisdiction over such drug crime, the money is not necessary to prove the intent or the overt act essential to proof of a conspiracy, and therefore the money was not employed in aid or in furtherance of that crime.
In order to hold the complainant criminally liable in connection with the aborted Florida drug transaction, his conduct in New York must have been sufficient to establish at least one of three possible anticipatory offenses with respect to the object crime of criminal possession of a controlled substance namely, attempt, conspiracy, or solicitation.
A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. In addition to proof of intent to commit a specific crime, the statute requires a showing that defendant committed an act or acts that carried the project forward within dangerous proximity to the criminal end to be attained.
The complainant’s conduct in Bronx state did not proceed beyond mere preparation, the object crime being far from fruition. Thus, there has been no attempt to commit the crime in New York so as to confer jurisdiction under the Criminal Procedure Law.
The Penal Law provides, in relevant part that a person is guilty of conspiracy when with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct. It provides further that 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.
It has been held that a telephone conversation may constitute an overt act in furtherance of a conspiracy when the conversation takes a step toward execution of the conspiracy and is not simply a part of, or cementing, the agreement itself. Whether the conversation is independent of the agreement is to be determined from its context and content. The complainant states that his conversations with the man merely confirmed the date of their second meeting. Since the contents of such conversations are not clear, it cannot be determined whether the discussions went beyond the agreement.
However, the complainant’s second trip, departing from New York to go to Florida with $50,000 in his knapsack, is conduct referable to the object of the conspiracy, and therefore constitutes the necessary overt act in this case.
Inasmuch as it has been determined that the complainant’s conduct in Bronx state constituted conspiracy, it is unnecessary to consider whether or not it constituted a criminal solicitation as well.
With respect to the use of the money in aid or furtherance of crime, there is no statutory definition in the Administrative Code delineating the nexus that must exist between the property and the crime it allegedly aided.
Civil Practice Law and Rules (CPLR) enacted after the Administrative Code provision under discussion, defines property which may be seized as an instrumentality of a crime as any property whose use contributes directly and materially to the commission of a crime. A corporation which had been used as a front for illegal drug sales, wherein the defendant procured the drugs and paid for them in the corporate name, was held to be an instrumentality of a crime since it contributed directly and materially to the illicit activity.
The CPLR criterion for instrumentality is instructive with respect to the meaning of in aid or furtherance under the Administrative Code. In order to be subject to forfeiture, it is not necessary that the property be an essential element of the crime or that its use be necessary to prove the crime. All that is required is that, borrowing from what is made explicit in the CPLR, the property contributes directly and materially to the crime.
In the case at bar, the complainant displayed the money to the man, an act demonstrating his desire and ability to consummate a large scale drug deal. Although the money did not contribute to the existence of the conspiracy, since the complainant student and the man had already formed their agreement as previously discussed, it did contribute directly and materially to the object crime–the anticipated heroin possession. There was therefore a sufficient nexus between the crime and the money to justify its forfeiture.
Accordingly, the defendant’s motion for summary judgment is granted, as the student is not a proper claimant of either the vehicle or the money seized and the defendant is entitled to retain them. The complainant’s cross motion is denied, except insofar as he seeks return of that portion of the monies seized which exceed $50,000 and as to which the defendant has no dispute.
When crime suspects are arrested with their personal properties that are of great value, it would be assumed to be obtained through illegal money. If your personal properties were illegally seized after being arrested for drug related crime, the New York City Drug Lawyers or the NYC Criminal Attorneys from Stephen Bilkis and Associates can help you.