People v. Mike, 706 N.E.2d 1189 (N.Y. 1998). · Go Syfert
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People v. Mike, 706 N.E.2d 1189 (N.Y. 1998). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases, last quoted 2008 · 3 courts · …to sell, exchange, give or dispose of to another, or to offer or agree to do the same at p. 998 ⚠ not in text
81 citation events (71 in the last 25 years) across 10 distinct courts.
Strongest positive: People v. Guy (nyappdiv, 2024-12-26)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Guy
N.Y. App. Div. · 2024 · confidence medium
Footnotes Footnote 1: The jury was charged regarding the fact that "sell" encompasses an "offer or agreement to sell even if actual delivery does not occur provided that at the time of the offer or agreement that person has the intent and ability to make the sale" ( see Penal Law § 220.00 [1]; People v Mike , 92 NY2d 996, 998 [1998]).
discussed Cited as authority (rule) MANN v. United States
D.N.J. · 2021 · confidence medium
Specifically, the Bryant court explained that “it is well-established under New York law that ‘in order to support a conviction under an offering for sale theory, there must be evidence of a bona fide offer to sell- i.e., that defendant had both the intent and ability to proceed with the sale.’” Id. (first quoting People v. Samuels, 780 N.E.2d 513, 515 (N.Y. 2002), then quoting People v. Mike, 706 N.E.2d 1189, 1191 (N.Y. 1998)).
discussed Cited as authority (rule) People v. Hiedeman
N.Y. App. Div. · 2020 · confidence medium
Although defendant engaged in conversations contemplating sexual contact with a 14-year-old and drove to a location where he was told a 14-year-old would be, under the circumstances of this case, his conduct did not pass the stage of mere preparation and bring him dangerously close to committing the attempted crimes of rape in the second degree, a criminal sexual act in the second degree or an act endangering the welfare of a child ( see People v Lendof-Gonzalez , 2020 NY Slip Op 06940 at *3-*4; People v Mike , 92 NY2d 996, 998-999 [1998]; People v Omwathath , 39 Misc 3d 41, 43 [App Term, 2d D…
discussed Cited as authority (rule) People v. Vargas
N.Y. App. Div. · 2019 · confidence medium
That is all the more so because, with respect to the first indictment, we upheld his convictions for criminal sale in the third degree and conspiracy in the fourth degree, finding that the evidence established that "defendant made 'a bona fide offer to sell' indicating both the intent and the ability to proceed with the sale" ( 72 AD3d at 1117-1118 , quoting People v Mike , 92 NY2d 996, 998 [1998]).
discussed Cited as authority (rule) United States of America v. Michael Roman Burghardt
D.N.H. · 2018 · confidence medium
The Court of Appeals noted that New York law requires “evidence of a bona fide offer to sell – i.e., that defendant had both the intent and the ability to proceed with the sale.” Id. at 110 (citing People v. Mike, 706 N.E.2d 1189, 1191 (N.Y. 1998)).
discussed Cited as authority (rule) People v. Gethers (2×)
N.Y. App. Div. · 2017 · confidence medium
Under Penal Law § 220.00 (1), a criminal sale includes an offer to sell or exchange drugs; thus, there is no requirement that an offer to sell or exchange drugs be consummated to sustain a conviction for criminal sale of a controlled substance (see People v Samuels, 99 NY2d 20, 24 [2002]; People v Mike, 92 NY2d 996, 998 [1998]).
discussed Cited as authority (rule) People v. Cochran
N.Y. App. Div. · 2016 · confidence medium
Where, as here, the People primarily rely on intercepted telephone *1200 conversations as evidence of a sale of drugs (see Penal Law §§ 220.00 [1]; 220.39 [1]), all that Martin requires is the production of “some additional evidence establishing the existence of [the drug in question] to support [defendant’s] convictions for [its sale]” (People v Martin, 81 AD3d at 1179 ; see People v Samuels, 99 NY2d 20, 24 [2002]; People v Mike, 92 NY2d 996, 998 [1998]).
discussed Cited as authority (rule) People v. Magee
N.Y. App. Div. · 2016 · confidence medium
However, in order to support a conviction under an offering for sale theory, there must be evidence of a bona fide offer to sell — i.e., that defendant had both the intent and the ability to proceed with the sale” (People v Mike, 92 NY2d 996, 998 [1998] [citations omitted]; see People v Samuels, 99 NY2d 20, 23-24 [2002]; People v Vargas, 72 AD3d 1114, 1117 [2010], lv denied 15 NY3d 758 [2010]; People v Crampton, 45 AD3d 1180, 1181 [2007], lv denied 10 NY3d 861 [2008]).
examined Cited as authority (rule) United States v. Whindleton (5×) also: Cited "see"
1st Cir. · 2015 · confidence medium
A conviction would not stand without proof that the “defendant had the ability to procure the [controlled substance] he purportedly offered to sell.” See Mike, 684 N.Y.S.2d 165 , 706 N.E.2d at 1190-91 (citation and internal quotation marks omitted).
discussed Cited as authority (rule) People v. Vargas
N.Y. App. Div. · 2010 · confidence medium
The recorded telephone conversations between defendant and his codefendant customers Ronald Woodruff and Marsha Hoover, as well as the trial testimony of Matthews, Dash and CNET investigators, established that, with respect to each of the sale counts, defendant made “a bona fide offer to sell” indicating both the intent and the ability to proceed with the sale (People v Mike, 92 NY2d 996, 998 [1998]; see Penal Law § 220.00 [1]; People v Samuels, 99 NY2d 20, 24 [2002]; People v Polanco, 50 AD3d 587, 588 [2008], lv denied 11 NY3d 834 [2008]; People v Crampton, 45 AD3d 1180, 1181 [2007], lv …
discussed Cited as authority (rule) People v. Davis (2×)
NY · 2009 · confidence medium
This analysis is in no way altered by our holding in People v Mike ( 92 NY2d 996, 998 [1998]) that a drug sale requires an “ability to proceed with the sale.” As we stated in Mike , ability to sell does not require “proof of possession of the contraband” (id. at 998-999).
discussed Cited as authority (rule) United States v. Bryant (2×)
1st Cir. · 2009 · confidence medium
Bryant’s argument fails because it is well-established under New York law that “ ‘in order to support a conviction under an offering for sale theory, there must be evidence of a bona fide offer to sell — i.e., that defendant had both the intent and ability to proceed with the sale.’ ” People v. Samuels, 99 N.Y.2d 20 , 750 N.Y.S.2d 828 , 780 N.E.2d 513, 515 (2002) (quoting People v. Mike, 92 N.Y.2d 996 , 684 N.Y.S.2d 165 , 706 N.E.2d 1189, 1191 (N.Y.1998)); see also People v. Gondolfo, 94 Misc.2d 696 , 405 N.Y.S.2d 890, 894-95 (1978).
discussed Cited as authority (rule) People v. Davis
N.Y. App. Div. · 2008 · confidence medium
The validity of that conclusion is not undermined by the holding in People v Mike ( 92 NY2d 996, 998 [1998]) that a convic tion for criminal sale under an offer to sell theory (Penal Law § 220.00 [1]) requires proof that the defendant “had both the intent and the ability to proceed with the sale.” Regardless of whether someone who is not in actual possession of a controlled substance can have the “ability to proceed with [a] sale” without being in constructive possession of the contraband (see People v Manini, 79 NY2d 561, 573 [1992] [constructive possession requires proof that “the…
discussed Cited as authority (rule) People v. Crampton
N.Y. App. Div. · 2007 · confidence medium
It is well settled that “[a] conviction for criminal sale does not require that an actual sale be consummated; under Penal Law § 220.00 (1), a ‘sale’ includes an offer to sell or exchange drugs” (People v Mike, 92 NY2d 996, 998 [1998]; see People v Samuels, 99 NY2d 20, 24 [2002]).
discussed Cited as authority (rule) People v. Pao Fun
N.Y. City Crim. Ct. · 2007 · confidence medium
An attempt to commit an act and an offer to commit it are not the same thing (cf. People v Mike, 92 NY2d 996, 998-999 [1998] [analyzing whether the evidence, which was legally insufficient to establish criminal sale of a controlled substance in the third degree premised on an alleged offer to sell, was nevertheless sufficient to make out attempted criminal sale]; People v Reap, 68 AD2d 964 [3d Dept 1979] [reinstating indictment charging attempted criminal sale of a controlled substance]; see also Penal Law § 220.00 [1] [“sell” a controlled substance means “to sell, exchange, give or dis…
discussed Cited as authority (rule) Mike v. State
nyclaimsct · 2005 · confidence medium
Although [claimant] did later give an oral statement indicating he intended to sell cocaine to the officers, he made no reference to a source of drugs or prior drug sales at the building in question.” (Pe ople v Mike, 92 NY2d 996, 998 [1998].) 2.
discussed Cited as authority (rule) People v. Samuels
NY · 2002 · confidence medium
At trial, defendants moved for dismissal, arguing that the People had presented insufficient evidence that defendants had the intent and ability to sell crack cocaine (see People v Mike, 92 NY2d 996, 998 [1998]).
discussed Cited as authority (rule) People v. Samuels
N.Y. App. Div. · 2001 · confidence medium
It is because of the latter part of the statutory definition that liability for this crime may attach even where the transaction has not been consummated (see, People v Mike, supra at 998; People v Redden, 181 AD2d 1016 , lv denied 79 NY2d 1053 ; People v Mullen, 152 AD2d 260 ).
discussed Cited "see, e.g." United States v. Burghardt
1st Cir. · 2019 · signal: see, e.g. · confidence medium
See, e.g., People v. Mike, 706 N.E.2d 1189, 1191 (N.Y. 1998) (holding that, under a statute which defined "sell" as an "offer," "there must be evidence of a bona fide offer to sell -- i.e., that defendant had both the intent and the ability to proceed with the sale").
Retrieving the full opinion text from the archive…
The People of the State of New York, Respondent-Appellant,
v.
Jeffel Mike, Appellant-Respondent
New York Court of Appeals.
Dec 3, 1998.
706 N.E.2d 1189
1998 N.Y. LEXIS 4050
APPEARANCES OF COUNSEL, Robert M. O’Leary, Public Defender of Broome County, Binghamton (William L. Brown of counsel), for appellant-respondent., Gerald F. Mollen, District Attorney of Broome County, Binghamton (Joann Rose Parry of counsel), for respondent-appellant.
Bellacosa.
Cited by 36 opinions  |  Published

Lead Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed.

[*998] Defendant was convicted, after a bench trial, of third degree criminal sale of a controlled substance. Defendant approached two off-duty police officers and inquired whether they were interested in purchasing an unspecified type and quantity of drugs. One of the officers asked if defendant had any “dime bags;” defendant responded that he only had “twenties.” Ultimately, defendant got into the officers’ vehicle and led them to the driveway of a building. Defendant told the officers to give him some money, and he would go into the building and get the drugs. The officer who had offered to purchase the drugs was unwilling to go along with this arrangement. The money belonged to the officer and he was admittedly afraid that defendant would simply abscond with it.

Because of the officer’s unwillingness to either part with the money or accompany defendant into the building, the transaction proceeded no further and without ever having exited the vehicle, defendant was placed under arrest for offering to sell drugs. Defendant did not possess any money or drugs at the time of his arrest and there was no evidence that he had previously sold drugs to the officers or anyone else. Although defendant did later give an oral statement indicating he intended to sell cocaine to the officers, he made no reference to a source of drugs or prior drug sales at the building in question. There was no evidence that there were drugs in the building at the time of defendant’s arrest, or even that the building was a known drug location. “Notably absent from the People’s case is any proof that defendant had the ability to procure the cocaine he purportedly offered to sell” (246 AD2d 682, 683). The Appellate Division found the evidence insufficient to support the criminal sale charge, and reduced defendant’s conviction to attempted criminal sale.

We agree that the evidence was insufficient to support defendant’s conviction for third degree criminal sale of a controlled substance. A conviction for criminal sale does not require that an actual sale be consummated; under Penal Law § 220.00 (1), a “sale” includes an offer to sell or exchange drugs. However, in order to support a conviction under an offering for sale theory, there must be evidence of a bona fide offer to sell— i.e., that defendant had both the intent and the ability to proceed with the sale (see, People v Gondolfo, 94 Misc 2d 696, 702 [Alexander, J.] [“not every casual offer is made criminal but where a defendant has made a bona fide offer or agreement to sell and there is sufficient evidence to indicate an ability and intent on the part of the defendant to complete the transaction,[*999] a conviction for sale may be obtained without proof of possession of the contraband.”]; see also, People v Flores, 84 NY2d 957). Here, the evidence was insufficient to establish that defendant had the ability to carry out the sale.

The evidence was also insufficient to support the attempted sale conviction. There was no evidence to show that defendant came dangerously close to actually completing the sale (People v Warren, 66 NY2d 831, 832). Thus, the Appellate Division erred in reducing the conviction to third degree attempted criminal sale, as the evidence was insufficient to support either offense.

Dissent

Bellacosa, J.

(dissenting in part). In my view, the Appellate Division, per the majority opinion by Justice Yesawich, correctly sorted this case out. Because I conclude that the Appellate Division’s modification and reduction of the defendant’s criminal responsibility to attempted criminal sale of a controlled substance are justified on this record, I respectfully dissent from this Court’s ruling on that aspect of the case. The instant case is vastly different from People v Warren (66 NY2d 831) in its essential facts, and in the procedural review framework in which it was presented to the appellate courts.

The Jeflfel Mike matter is a Bench-tried case which acquired undisturbed findings and inferences from the Appellate Division decision as it pertains to the sustained lesser count of attempt. In that respect the case is before this Court on the defendant’s appeal. The Warren case, on the other hand, was a Grand Jury sufficiency type case. It was dismissed on motion by the nisi prius court, affirmed at the Appellate Division, and ultimately resolved against the People on their appeal to this Court (id.).

The recitation of remote and multiple contingencies bearing on the possibility of a consummated crime in the Warren case (see, id., at 832-833) shows that those circumstances are not at all like the nonaccomplishment of this criminal transaction. Here, the deal fell through simply because the “buyer” officer was realistically unwilling to “front” his own cash to close the drug deal. That is when the defendant faded out of the picture.

Defendant’s oral admission about his intent to arrange for the acquisition of “powder or rock” cocaine, and the evidentiary circumstances evolving right up to the next-to-last step before the deal went sour — constitute sufficient trial evidence to sustain this criminal charge. That is also all that is within this Court’s limited review powers in such circumstances. I would[*1000] therefore uphold the Appellate Division’s downward adjustment of the verdict to the sustainable level of criminal responsibility under the evidence adduced at trial (see, People v Mahboubian, 74 NY2d 174, 190-191; People v Rizzo, 246 NY 334; cf., People v Flores, 84 NY2d 957).

Chief Judge Kaye and Judges Smith, Levine, Ciparick and Wesley concur in memorandum; Judge Bellacosa dissents in part in an opinion.

Order reversed, etc.