People v. Acosta
593 N.Y.S.2d 978, 609 N.E.2d 518, 80 N.Y.2d 665 (1993)
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Rule of Law:
A defendant who intends to possess a controlled substance and takes steps that come dangerously near to consummation of the crime, such as ordering drugs from a supplier, admitting a courier into their home, and examining the drugs, is guilty of an attempt to commit that crime, even if they ultimately reject the substance due to perceived defects in its quality.
Facts:
- In July 1987, Miguel Acosta introduced his brother, defendant Angel Acosta, to an undercover officer, stating they 'work together' in the drug trade.
- In the days leading up to March 21, 1988, Acosta engaged in several wiretapped telephone conversations with Luis Rojas to negotiate the purchase of kilogram quantities of cocaine.
- On March 21, 1988, at 11:37 a.m., Rojas called Acosta, who told him to 'come by here.'
- Around 12:15 p.m. that day, police officers observed an unidentified man enter Acosta's apartment building carrying a heavy plastic bag.
- At 12:30 p.m., the same man exited the building carrying the same bag, which still appeared heavy, and drove away.
- Minutes later, in a series of phone calls, Acosta told associates that he had met with a messenger but rejected the 'tickets' (a code word for cocaine) because they were 'no good' and looked 'falsified.'
- The following day, Acosta continued his efforts to procure cocaine by arranging to 'check out' another potential source.
Procedural Posture:
- Angel Acosta was convicted by a jury in the trial court of attempted criminal possession of a controlled substance in the first degree and conspiracy in the second degree.
- Acosta, as appellant, appealed his conviction to the Appellate Division.
- The Appellate Division, in a divided decision, reversed the conviction for attempted possession, finding the evidence legally insufficient, and vacated the associated sentence.
- The People, as appellant, were granted leave to appeal the Appellate Division's reversal to the New York Court of Appeals (the state's highest court).
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Issue:
Does a defendant's conduct of ordering illegal drugs, admitting a courier into their home to inspect them, and then rejecting them for poor quality constitute conduct that is 'dangerously near' the commission of criminal possession, thereby satisfying the legal standard for an attempt?
Opinions:
Majority - Kaye, J.
Yes. A defendant who orders illegal narcotics, admits a courier, and examines the goods has come 'dangerously near' to possessing those drugs and is guilty of an attempt. The defendant's actions went beyond mere preparation, as the only remaining step to complete the crime was accepting the merchandise, an act entirely within his control. The evidence, viewed in the light most favorable to the People, was legally sufficient for a rational jury to conclude from the surveillance and wiretapped calls that Acosta met with a drug courier and examined the cocaine. Furthermore, Acosta's rejection of the drugs does not constitute a legal renunciation, which requires a complete and voluntary abandonment of the overall criminal purpose, not merely a postponement or rejection of a specific, unsatisfactory transaction.
Dissenting - Smith, J.
No. The defendant's conduct did not come 'dangerously close' to the crime of possession because the evidence was insufficient. The police observation of an unidentified man with a bag is speculative and adds 'no material evidence at all,' as there was no proof of the man's identity, the bag's contents, or that he even went to the defendant's specific apartment. The wiretapped conversations alone, where the defendant discusses rejecting 'tickets,' are insufficient to establish beyond a reasonable doubt that he was in dangerous proximity to actually possessing cocaine.
Analysis:
This decision reinforces New York's strict 'dangerously near' standard for criminal attempts, clarifying that the threshold is met when a defendant has taken all necessary preparatory steps and only the final act of consummation remains. The case distinguishes between a true legal renunciation of a criminal enterprise and a mere rejection of a specific batch of contraband due to quality control, holding that the latter does not vitiate an attempt. This precedent makes it easier for prosecutors to secure attempt convictions in controlled substance cases where a transaction is nearly completed but fails at the last moment for reasons other than the defendant's change of heart about the crime itself.
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