Facts
- A New York County grand jury returned a 1,169-count indictment against 32 defendants arising from an alleged cocaine operation associated with Jack Buccafusco.
- The People alleged Buccafusco sold cocaine in large quantities and supplied others who stored cocaine at multiple locations and distributed it through smaller sellers and direct sales to users.
- The alleged organization kept handwritten ledger books and computer records that consistently recorded transactions (quantities, dates, and customer identifiers) using a prearranged code.
- Michael Macklowitz, an attorney and former Kings County assistant district attorney, was alleged to have been one of Buccafusco’s steady customers from about November 1984 until March 12, 1986 (the date of Buccafusco’s arrest).
- The People alleged Macklowitz bought cocaine on many occasions in amounts ranging from approximately one-half gram up to one-quarter ounce or more, and that he appeared in the records under a coded name (“Duane,” with variant spellings).
- As to Macklowitz, the indictment charged (among other counts) conspiracy in the fourth degree and several possession/attempted possession counts.
- The grand jury evidence described in the opinion included accomplice testimony from a participant in the operation, the coded ledger/computer records, and intercepted telephone conversations.
- Macklowitz moved pretrial to dismiss the indictment as against him, arguing that buying cocaine for personal use cannot make an “ultimate purchaser” a conspirator with sellers, and that dealer-created records could not serve as independent corroboration of accomplice testimony under CPL § 60.22.
Issues
- Whether an ultimate purchaser of narcotics may be indicted for conspiracy with sellers to criminally possess a controlled substance, where the People allege more than an isolated purchase.
- Whether ledger books and computer records of drug transactions maintained by a statutory accomplice can provide independent corroborative evidence of accomplice testimony under CPL § 60.22.
Decision
- The court denied Macklowitz’s motion to dismiss the indictment.
- On the conspiracy issue, the court held that an ultimate purchaser is not categorically exempt from conspiracy liability and may be indicted where the evidence permits an inference of a knowing agreement to participate in an ongoing scheme whose object is criminal possession of a specified quantity.
- The court concluded the grand jury evidence was legally sufficient to support conspiracy in the fourth degree and the related possession counts against Macklowitz.
- On corroboration, the court held that dealer-kept ledger books and computer records may qualify as corroborative evidence under CPL § 60.22 when they tend to connect the defendant to the charged crimes, and the grand jury record provided adequate corroboration.
Legal Principles
- Conspiracy requires proof of an agreement and intent that conduct constituting a crime be performed; it is not limited to organizers or sellers.
- A buyer–seller relationship does not automatically establish conspiracy, but a purchaser may be part of a conspiracy to possess where the circumstances support a finding that the purchaser knowingly joined a continuing plan directed at possession of a particular statutory quantity.
- On a motion to dismiss for legal insufficiency, the question is whether the grand jury evidence, viewed most favorably to the People, provides a legally sufficient basis to support the charges.
- Under CPL § 60.22, accomplice testimony must be supported by evidence tending to connect the defendant with the commission of the offense; the corroboration need not prove guilt by itself.
- Documentary evidence such as coded ledgers and computer records kept in the course of a drug operation may serve as corroboration if it links the defendant to the charged activity, even if an accomplice participated in creating or maintaining the records.
Conclusion
The court refused to dismiss the indictment against Macklowitz, holding that an ultimate purchaser can be charged as a conspirator when the grand jury evidence supports an inference that the buyer knowingly agreed to an ongoing plan to criminally possess cocaine at the relevant statutory level, and further holding that coded ledgers and computer records of transactions may provide the independent corroboration of accomplice testimony required by CPL § 60.22.