People v. Acosta

609 N.E.2d 518 (1993)

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Nature of the Case

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Facts

Officers began investigating the activities of D, his brother Miguel and others. They used undercover officer to infiltrate the organization, stakeouts and court-authorized wiretaps. The undercover met with Miguel at a Manhattan apartment and purchased cocaine. At that time, Miguel introduced D to the officer, telling her that they 'work together.' A wiretap revealed that De was negotiating with Luis Rojas to purchase kilogram quantities of cocaine. A phone call indicated that a deal was going down. Officers staking out D's six-floor apartment building saw a man pull up in a car, remove a black and white plastic bag from the trunk, and enter the building. The bag's handles were stretched, indicating that the contents were heavy. At 12:30, the man emerged from the building, carrying the same plastic bag which still appeared to be heavy. He placed the bag back in the trunk and drove off. D got on the phone and called Frank, stating that he 'saw the man' but 'those tickets … were no good; they weren't good for the game man.' D indicated that some of the seats were real bad, very bad, very bad.' D and Frank talked in code but it was clear that the drugs that were delivered were unacceptable to D. D acknowledged that he 'wants to participate in the game but if you can't see it, you're going to come out upset.' Rojas called D and D responded, 'Oh yes, but he left because (inaudible) it doesn't fit me. … You told me it was the same thing, same ticket.' Rojas rejoined, 'No. We'll see each other at six.' D telephoned Hector Vargas, who wanted to know 'what happened?' Defendant said, 'Nothing. I saw something there, what you wanted, but I returned it because it was a shit there.' Vargas suggested that he might be able to obtain something 'white and good.' The following day, D again called Vargas to discuss 'the thing you told me about, you know what I'm referring to.' D recommended that Vargas 'go talk to him, talk to him personally and check it out.' D thought that 'it would be better if you took the tickets, at least one or whatever.' At trial, D argued that the evidence was insufficient to establish that he attempted to possess cocaine. D was found guilty and sentenced to a prison term of 25 years to life. D appealed. The appeals court reversed. The evidence shows D's flat rejection of that offer, and thus total abandonment of the criminal enterprise with respect to this particular quantity of cocaine. P appealed.