Acting in Concert & Accomplice Liability: How Far Must You Go to be Liable for Another Person’s Conduct

New York, like all other states, has its own means to determine whether individuals can be arrested and charged as co-defendants for a particular crime. Obviously, merely being present when a crime is committed by another person is not legally sufficient enough to establish guilt beyond a reasonable doubt (although, do not be shocked if you are arrested and later have to fight to have the matter dismissed). Because presence alone is not enough, what do New York criminal defense attorneys review to determine if an accused’s conduct reaches the level of acting in concert or accomplice liability in any New York arrest?

Addressed in the context of a marihuana (marijuana) sale, In People v. Ramirez, 2013NY046507, NYLJ 1202624767720 (Crim., NY, Decided September 27, 2013), a separately-charged individual sold marihuana to an undercover officer and then, according to another police officer, that individual handed money to the defendant as “part of the above-mentioned transaction.” Afterward, a police officer attempted to place the defendant under arrest, but the defendant ran 1-½ city blocks, refusing to be handcuffed. The defendant’s actions resulted in the arresting officer sustaining injuries. Subsequently, the defendant was charged with Criminal Sale of Marihuana in the Fourth Degree (New York Penal Law 221.40), under the theory he acted in concert with or as an accomplice to the separately-charged individual (the principal), and Resisting Arrest (New York Penal Law 205.30). While the defendant made a motion to dismiss both charges, the court only dismissed the marihuana crime.

The law states that a person is guilty of Criminal Sale of Marihuana in the Fourth Degree when “he knowingly and unlawfully sells marihuana.” (NY PL 221.40). More specific to the defendant, a person is held criminally liable for the conduct of another “when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes or intentionally aids such person to engage in such conduct” (NY PL 20.00). The People must prove that the defendant “shared the requisite mental culpability as the principal and aided the principal in…committing the offense” (People v. Kaplan, 76 N.Y2d 140, 144-45 (1990)). In particular, the People must show that the alleged facts establish that the defendant “exhibited…behavior that purposefully affected or furthered the sale” (People v. Bello, 92 N.Y.2d 523, 526 (1993)). In this case, the key element that the court must analyze is “whether the defendant intentionally and directly assisted” in the sale of marihuana (id.).

With that being said, the People must establish that the defendant shared the requisite mental state of knowingly and unlawfully selling marihuana to the undercover officer by purposefully aiding the principal in committing that sale.” In other words, accomplice liability requires “awareness of the proscribed conduct and some overt act in furtherance” of such conduct (People v. Hibbert, 282 A.D.2d 365, 366 (1st Dep’t 2001)). Courts have held that a person’s mere presence at a crime or awareness of a crime occurring is insufficient for accomplice liability (see People v. Yarrell, 75 N.Y.2d 828 (1990)). Nor is accomplice liability chargeable where there are insufficient factual allegations to establish defendant’s shared mental culpability coupled with an overt act (see Hibbert, 282 A.D.2d 365).

In the case at hand, the court held that the defendant’s mere acceptance of marihuana proceeds from the seller, without any facts alleging that the defendant acted overtly or had an awareness of the sale, is not enough to hold the defendant as an accomplice. The facts show that the People merely alleged that the defendant’s “sole role in the offense was that he accepted money from the separately-charge individual ‘as a part of the above-mentioned transaction’ with the undercover officer.” The phrase “as a part of”, according to the court, is “conclusory, vague, and ambiguous” as it does not provide sufficient detail as to how the defendant “assisted with the actual sale.” Because there were no “non-conclusory allegations to infer that the defendant was aware of the sale and that he assisted the separately-charged individual”, the motion to dismiss the marihuana charge was granted.

While Ramirez deals with a marijuana case, the legal concepts and rules are applicable to all other crimes. It is not a marijuana or narcotic specific ruling. With this in mind, this case is one you and your New York criminal lawyer may want to examine when determining whether or not you have a potential defense to a crime where you are charged as an accomplice.

To learn more about New York’s various crimes and defenses, including Resisting Arrest and New York Drug Crimes as addressed here, peruse CrottySaland.Com or the NewYorkCriminalLawyerBlog.Com as a valuable resource.

Crotty Saland PC is a New York City based criminal defense firm established by two former Manhattan District Attorneys who represent clients in all stages of criminal investigations and arrests in the greater NYC area.

Updated: