<partyblock><br><br><div align="center"><b><font size="+1">The People of the State of New York, <br><br>against<br><br>Annie Tribble, Defendant-Appellant.</font></b></div><br><br><p>Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Abraham L. Clott, J.), rendered September 28, 2012, convicting her, upon a plea of guilty, of criminal sale of marihuana in the fourth degree, and imposing sentence.</p><p>Per Curiam.</p><p>Judgment of conviction (Abraham L. Clott, J.), rendered September 28, 2012, reversed, on the law, accusatory instrument dismissed and surcharge, if paid remitted.</p><p>In view of defendant's knowing waiver of her right to prosecution by information, the facial sufficiency of the accusatory instrument must be assessed under the standard required of a misdemeanor complaint (<a href="../2014/2014_04038.htm" target="_blank"><i>see People v Dumay</i>, 23 NY3d 518</a> [2014]). Even when viewed under the more liberal standard, the accusatory instrument was jurisdictionally defective since it failed to allege "facts of an evidentiary character" (CPL 100.15[3]) demonstrating "reasonable cause" to believe (CPL 100.40[4][b]) that defendant was guilty of criminal sale of marihuana in the fourth degree (<i>see</i> Penal Law ยง 221.40) under the accomplice liability theory advanced by the People (<i>see</i> Penal Law ยง 20.00). In this connection, the factual portion of the complaint alleges that, at a particular date, time and park location, an undercover officer handed a separately charged individual cash, in exchange for a quantity of marihuana, "while defendant [Tribble] repeatedly stood up, looked around, paced back and forth, and otherwise acted as a lookout."</p><p>The quoted facts, even when taken together with all reasonable inferences which can be drawn from those facts (<a href="../2012/2012_02252.htm" target="_blank"><i>see People v Jackson</i>, 18 NY3d 738</a>, 747 [2012]), do not give rise to the required inference that defendant "intentionally and directly assisted in achieving the ultimate goal of the enterprise" (<i>People v Bello</i>, 92 NY2d 523, 526 [1998]), the criminal sale of marihuana. Absent from the People's pleading were any allegations that defendant interacted with or even knew the seller, was aware that a marihuana sale was occurring, or that he was even close enough to the sale to verbally or visibly communicate with the seller (<a href="../2011/2011_50369.htm" target="_blank"><i>see People v Mondon</i>, 30 Misc 3d 1235</a>[A], 2011 NY Slip Op 50369[U] [Crim Ct, NY County 2011]; <a href="../2007/2007_07480.htm" target="_blank"><i>compare People v Eduardo, </i>44 AD3d 371</a>, 372 [2007], <i>affd</i> 11 NY3d 484 [2008] ["Defendant's entire course of conduct and interactions with his codefendants supported the conclusion that he was a participant in a drug operation, and that he assisted the others by acting as a lookout"]; <i>People v Fernandez</i>, 193 AD2d 406 [1993], <i>lv denied </i>81 NY2d 1072 [1993] ["Defendant's unprompted <font color="FF0000">[*2]</font>communication to the seller of his approval of the buyer, and his role as a  lookout' at the request of the seller, combined with his observed close interaction with the seller before, during and after the sale, creates a reasonable inference that defendant was acting intentionally to aid the seller in safely consummating the sale"]; <i>People v Cruz</i>, 204 AD2d 212 [1994], <i>lv denied </i>83 NY2d 1003 [1994]) ["undercover was brought to defendant and an accomplice; that defendant was present while the sale was negotiated; that defendant was directed and agreed to act as lookout; and that the exchange of heroin occurred when defendant signaled that there were no police in the vicinity"]). The allegations in the underlying accusatory instrument are not "collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely" (CPL ยง 70.10[2]) that defendant was intentionally and directly assisting in the sale of marihuana by acting as a lookout.</p><p>THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.</p><br>I concur I concur <p>Decision Date: March 30, 2016</p><br><br><div align="center"><form method="LINK" action="../../slipidx/at_1_idxtable.shtml"><input type="submit" value="Return to Decision List"></form></div></partyblock>