People v. Corporan

OPINION OF THE COURT

Tom, J.

The People move to reargue the decision and order of this Court, entered on June 7, 1994 (200 AD2d 155), which modified defendant’s judgment of conviction. The People conceded that their police department chemist erred in her original lab report regarding the amount of cocaine sold by defendant. Pursuant to this error, defendant was indicted for selling 1% ounces and 12 grains instead of 2% ounces and 12 grains, which was the actual amount sold by defendant. However, the prosecutor chose not to reindict defendant after learning of the mistake and proceeded to trial on the original charges.

Defendant was convicted of criminal sale of a controlled substance in the second degree, attempted criminal sale of a controlled substance in the first degree, and criminal possession of a controlled substance in the third degree.

This Court modified the judgment to the extent of vacating the conviction for attempted criminal sale in the first degree. On reargument, the People now seek to reinstate the conviction for attempted sale in the first degree, with which the dissent agrees.

The fallacy with the People’s contention is that the defendant in this case cannot be convicted of both the attempted sale and the sale arising out of the same transaction since the failure to consummate the crime is a requisite to an attempt to commit such crime (People v Cosad, 253 App Div 104; see also, People v Richette, 33 NY2d 42, 47). Once the crime has been found to have been consummated, there can no longer be an attempt to commit that crime. The law is settled that in order for a defendant to be convicted of an attempted crime, his conduct must come " 'dangerously near’ * * * consummation of the criminal act” (People v Acosta, 197 AD2d 448, quoting People v Mahboubian, 74 NY2d 174, 192).

It is undisputed that defendant completed the sale of the cocaine to the undercover officer and has been convicted of that sale. To endorse the People’s position would lead to the untenable conclusion that a defendant can be convicted for attempting to sell something that he, in fact, sold and for which he was ultimately convicted.

The People’s motion for leave to reargue the decision and order of this Court, which was entered on June 7, 1994 (200 AD2d 155, supra), is denied.