People v. Macklowitz

514 N.Y.S.2d 883 (1987)

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Nature of the Case

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Facts

Buccafusco was in the business of selling cocaine. Buccafusco obtained his cocaine from Gilderubio. He stored a large stash of drugs and weapons in a safe secreted in an apartment (known as the studio) located on Staten Island. Buccafusco's right-hand men were Giammarino and Tranquillino. Giammarino and Tranquillino obtained large amounts of cocaine directly from Buccafusco. With the help of several associates and employees, they either sold cocaine to various smaller-scale sellers or sold directly to customer-users. Two of Buccafusco's biggest customers were Salvatore and Richard Romano. The Romanos were Brooklyn-based distributors. The Romanos engaged the services of police officers, Leggio and Caputo, who provided the Romanos with information regarding possible surveillance of the Romanos' illegal activities. The sales conducted by Buccafusco, Tranquillino, Giammarino, and the Romanos were consistently recorded in handwritten ledger books and/or computer records which were exclusively maintained by the three major participants -- Buccafusco, Giammarino, and Tranquillino. It is alleged that D, an attorney and former Kings County Assistant District Attorney, was one of Jack Buccafusco's steady customers from November 1984 until March 12, 1986, the day of Buccafusco's arrest. D was charged with conspiracy in the fourth degree. P claims that D with the intent that conduct constituting the crime of criminal possession of a controlled substance in the fourth degree be performed agreed with Jack Buccafusco and others to engage in or cause the performance of such conduct. P contends that the ledger books, computer records, telephone conversations, and accomplice testimony shows that D entered into an agreement with Jack Buccafusco and others, the object of which was the possession of one-eighth ounce or more of cocaine. D contends that the individual discreet 'buys,' if they occurred at all, do not establish the requisite shared intent and agreement between D and the various codefendants to engage in an ongoing course of criminal conduct. D moved to dismiss the indictment.