A person is guilty of criminal solicitation in the fourth degree when:
1. with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct; or
2. being over eighteen years of age, with intent that another person under sixteen years of age engage in conduct that would constitute a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.
Criminal solicitation in the fourth degree is a class A misdemeanor.
A person is guilty of criminal solicitation in the third degree when, being over eighteen years of age, with intent that another person under sixteen years of age engage in conduct that would constitute a felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.
Criminal solicitation in the third degree is a class E felony.
A person is guilty of criminal solicitation in the second degree when, with intent that another person engage in conduct constituting a class A felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.
Criminal solicitation in the second degree is a class D felony.
A person is guilty of criminal solicitation in the first degree when, being over eighteen years of age, with intent that another person under sixteen years of age engage in conduct that would constitute a class A felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.
Criminal solicitation in the first degree is a class C felony.
A person is not guilty of criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime solicited. When under such circumstances the solicitation constitutes an offense other than criminal solicitation which is related to but separate from the crime solicited, the actor is guilty of such related and separate offense only and not of criminal solicitation.
1. In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist.
2. The defense of duress as defined in subdivision one of this section is not available when a person intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.
Court of Appeals of the State of New York.
Ira Richard Ressler for Samuel Lubow, appellant.7
Sheldon Fried for Oscar Gissinger, appellant.8
Frank S. Hogan, District Attorney (Lewis R. Friedman and Michael R. Juviler of counsel), for respondent.9
Chief Judge FULD and Judges SCILEPPI, BREITEL, JASEN and GIBSON concur with Judge BERGAN; Judge BURKE concurs in result only.1011
The revised Penal Law creates a new kind of offense, simpler in structure than an attempt or a conspiracy, and resting solely on communication without need for any resulting action (art. 100, Criminal Solicitation, part of tit. G, Anticipatory Offenses, L. 1965, ch. 1030). Attempts to commit crimes and conspiracies are continued with some changes as crimes and these, too, are grouped within title G as "Anticipatory Offenses" (art. 105, Conspiracies; art. 110, Attempts).12
The basic statutory definition of criminal solicitation is that with intent that another person shall "engage in conduct constituting a crime" the accused "solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct". This basic definitory language is continued through three grades of solicitation, the gravity depending on what crime the conduct sought to be induced would effectuate.13
If the conduct would be "a crime" it is criminal solicitation in the third degree, a "violation" (§ 100.00); if the conduct would be "a felony" it is criminal solicitation in the second degree, a class A misdemeanor (§ 100.05); and if the conduct would be murder or kidnapping in the first degree it is criminal solicitation in the first degree, a class D felony (§ 100.10).14
As it has been noted, nothing need be done under the statute in furtherance of the communication ("solicits, commands, importunes") to constitute the offense. The communication itself with intent the other person engage in the unlawful conduct is enough. It needs no corroboration.15
And an attempt at communication which fails to reach the other person may also constitute the offense for the concluding clause "or otherwise attempts to cause such other person to engage in such conduct" would seem literally to embrace as an attempt an undelivered letter or message initiated with the necessary intent.16
Appellants have been convicted after a trial by a three-Judge panel in the Criminal Court of the City of New York of violation of section 100.05 which describes solicitation to commit a felony. The information on which the prosecution is based is made by complainant Max Silverman. It describes the charge as criminal solicitation and states that "defendants attempted to cause 63*63 deponent to commit the crime of grand larceny" in that they "attempted to induce the deponent to obtain precious stones on partial credit with a view towards appropriating the property to their own use and not paying the creditors, said conduct constituting the crime of larceny by false promise".17
Although the Penal Law section number is not stated in the information, it was clearly stated in court before the opening of the trial that the charge was a violation of section 100.05 and the facts alleged that the inducement was to commit grand larceny, a felony, which gave adequate notice of the nature of the offense involved.18
The proof in support of the charge, if factually accepted by the trial court, as it was by a majority of the Judges (one dissenting), was sufficient to warrant conviction. The Appellate Term affirmed unanimously.19
The evidence showed that complainant Silverman and both defendants were engaged in the jewelry business. It could be found that defendant Lubow owed Silverman $30,000 for diamonds on notes which were unpaid; that Lubow had told Silverman he was associated with a big operator interested in buying diamonds and introduced him to defendant Gissinger.20
It could also be found that in October, 1967, Silverman met the two defendants together at their office, demanded his money, and said that because of the amount owed him he was being forced into bankruptcy.21
Silverman testified in response to this Lubow said "Well, let's make it a big one, a big bankruptcy", and Gissinger said this was a good idea. When Silverman asked "how it is done" he testified that Lubow, with Gissinger participating, outlined a method by which diamonds would be purchased partly on credit, sold for less than cost, with the proceeds pyramided to boost Silverman's credit rating until very substantial amounts came in, when there was to be a bankruptcy with Silverman explaining that he had lost the cash gambling in Puerto Rico and Las Vegas. The cash would be divided among the three men. The gambling explanation for the disappearance of cash would be made to seem believable by producing credit cards for Puerto Rico and Las Vegas. Silverman testified that Lubow said "we would eventually wind up with a quarter of a million dollars each" and that Gissinger said "maybe millions".22
64*64Silverman reported this proposal to the District Attorney in October, 1967 and the following month a police detective equipped Silverman with a tape recorder concealed on his person which was in operation during conversations with defendants on November 16 and which tends to substantiate the charge. The reel was received in evidence on concession that it was taken from the machine Silverman wore November 16.23
A police detective testified as an expert that a "bust out operation" is a "pyramiding of credit by rapid purchasing of merchandise, and the rapid selling of the same merchandise sometimes 10 and 20 per cent the cost of the merchandise itself, and they keep selling and buying until they establish such a credit rating that they are able to purchase a large order at the end of their operation, and at this time they go into bankruptcy or they just leave".24
There thus seems sufficient evidence in the record to find that defendants intended Silverman to engage in conduct constituting a felony by defrauding creditors of amounts making out grand larceny and that they importuned Silverman to engage in such conduct. Thus the proof meets the actual terms of the statute.25
The statute itself is a valid exercise of legislative power. Commentators closely associated with the drafting of the Model Penal Code of the American Law Institute, from which the New York solicitation statute stems, have observed: "Purposeful solicitation presents dangers calling for preventive intervention and is sufficiently indicative of a disposition towards criminal activity to call for liability. Moreover, the fortuity that the person solicited does not agree to commit or attempt to commit the incited crime plainly should not relieve the solicitor of liability, when otherwise he would be a conspirator or an accomplice."26
Solicitation to commit a felony was a misdemeanor at common law (People v. Bush, 4 Hill 133, 135; Rex v. Higgins, 2 East 5). Summarizing this historical fact Judge CARDOZO observed: "So at common law, incitement to a felony, when it did not reach the stage of an attempt, was itself a separate crime, and like 65*65conspiracy, which it resembled, was a misdemeanor, not a felony" (People v. Werblow, 241 N.Y. 55, 66, citing Higgins and Rex v. Gregory, L. R. 1 C. C. R. 77).27
But as People v. Bush demonstrates, the solicitation in early New York cases was treated as closely related to an attempt. There defendant asked another to burn a barn and gave him a match for that purpose. This principle was followed to some extent (e.g., People v. Bloom, 149 App. Div. 295, 296-299) but there were fundamental difficulties with it under the concept of attempt and it seems not to have been followed after Bloom.28
Although this Penal Law provision is the first statutory enactment in New York, there have been statutes aimed at criminal solicitation in some other States, notably California.29
In commenting on the criminal solicitation enactment of article 100, two lawyers who were active in the work of the State Commission on Revision of the Penal Law and Criminal Code which prepared the present statute observed that article 100 "closes that gap" for those who believe, as apparently the commission and the American Law Institute did, that "solicitation to commit a crime involves sufficient culpability to warrant criminal sanctions".30
There are, however, potential difficulties inherent in this penal provision which should be looked at, even though all of them are not decisive in this present case. One, of course, is the absence of any need for corroboration. The tape recording here tends to give some independent support to the testimony of Silverman, but there are types of criminal conduct which might be solicited where there would be a heavy thrust placed on the credibility of a single witness testifying to a conversation. Extraordinary care might be required in deciding when to prosecute; in determining the truth; and in appellate review of the factual decision.31
One example would be the suggestion of one person to another that he commit a sexual offense; another is the suggestion that he commit perjury. The Model Penal Code did not require corroboration; 66*66 but aside from the need for corroboration which is traditional in some sexual offenses, there are dangers in the misinterpretation of innuendos or remarks which could be taken as invitations to commit sexual offenses. These are discussed by Wechsler-Jones-Korn (61 Col. L. Rev., p. 623, supra) with the comment that "it is a risk implicit in the punishment of almost all inchoate crimes".32
In two opinions for the California Supreme Court, Justice TRAYNOR has analyzed that State's criminal solicitations statute (Penal Code, § 653f; Benson v. Superior Ct. of Los Angeles County, 57 Cal. 2d 240 , and People v. Burt, 45 Cal. 2d 311 ).33
The first case was for solicitation to commit perjury and the second for solicitation to commit extortion.34
The California statute is based on a specific list of serious crimes to which criminal solicitation expressly applies; but as to all of them the statute requires that the offense "must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances".35
The basic public justification for legislative enactment is, however, very similar to New York's and was developed in the Burt opinion: "Legislative concern with the proscribed soliciting is demonstrated not only by the gravity of the crimes specified but by the fact that the crime, unlike conspiracy, does not require the commission of any overt act. It is complete when the solicitation is made, and it is immaterial that the object of the solicitation is never consummated, or that no steps are taken toward its consummation." The California Legislature was concerned "not only with the prevention of the harm that would result should the inducements prove successful, but with protecting inhabitants of this state from being exposed to inducements to commit or join in the commission of the crimes specified" (45 Cal. 2d 311, supra, p. 314).36
Another potential problem with the statute is that it includes an attempt to commit unlawful solicitation, i.e., solicits, etc., "or otherwise attempts to cause" the conduct. This has the same effect as the Model Penal Code, but the language there is different. The code spells the purpose out more specifically that: "It is immaterial * * * that the actor fails to communicate with the person he solicits to commit a crime if his conduct 67*67 was designed to effect such communication" (Model Penal Code, § 5.02, subd. , Tent. Draft No. 10, as analyzed by Wechsler-Jones-Korn, op. cit., p. 621). This could be an attempt in the classic sense and might be committed by a telephone message initiated but never delivered. The present Penal Law, stated in different language, has the same effect.37
Appellants raise a point based on the reduplicative overplay of section 100.00 which is a "violation" and section 100.05, of which they have been convicted, a "class A misdemeanor".38
Literally, the same act could fall within either section; and specifically the acts charged to appellants could come within either.39
Section 100.00 relates to solicitation of another person to "engage in conduct constituting a crime" and section 100.05 to "engage in conduct constituting a felony".40
Since a felony is a crime, whenever a charge is made based on solicitation to commit felony, it would come within both sections. It is not entirely clear why the statute was drawn this way. The commentators Denzer and McQuillan observe that although section 100.00 "embraces solicitation to commit any crime from a class B misdemeanor up to a class A felony, its principal application would normally be to those solicitation offenses not covered by the higher degrees" (op. cit., pp. 169-170).41
Whatever may be said of the abstract merits of a choice of prosecution based on the same act between a higher or lesser degree of crime, it seems to have been decided that prosecution for the higher degree is permissible (People v. Bord, 243 N.Y. 595; see, also, People v. Bergerson, 17 N Y 2d 398, 401; People v. Hines, 284 N.Y. 93, 105).42
It is argued that the information failed to advise defendants whether they were charged under section 100.00 or section 100.05 and that, since the grand larceny charged to have been solicited could come within 100.00, the information actually charged a violation; hence the three-Judge panel was without jurisdiction under section 40 of the New York City Criminal Court Act which provides for such a panel for trial of misdemeanors.43
But the record shows no request by defendants for particularization; before the opening of the trial it was announced that 68*68 the charge was based on section 100.05 and no objection or motion for specification was made as to the section on which the prosecution was proceeding (People v. Bogdanoff, 254 N.Y. 16, 31; People v. Farson, 244 N.Y. 413; People v. Williams, 243 N.Y. 162, 165).44
Moreover, defendants requested and had a preliminary hearing which is permissible under section 40 for misdemeanor cases where a three-Judge panel will try the case; and they proceeded to trial before the three-Judge panel without objection addressed to the part or the number of Judges participating.45
The parts of the court and panels of Judges are all within the Criminal Court which has statutory jurisdiction ("The court and the judges thereof") of misdemeanors as well as offenses less than misdemeanor (§ 31). The information sufficiently charged a misdemeanor. The Criminal Court constituted by three Judges had jurisdiction.46
Appellant Lubow argues that the tape recording of the conversations offered by the People was garbled and unintelligible and that the use of a transcript of it by the court, as it was being played, was improper. But there was no complaint by him at the trial that the tape was inaudible or unintelligible. It was sufficiently audible in large part, however, that the court stenographer, who had not heard it before, was able to transcribe most of it.47
It was understandable enough to leave it for the decision of the Trial Judges as to whether it would be received (Monroe v. United States, 234 F.2d 49, 55). There was an express consent by counsel to allow the Judges to take the transcript as an aid without receiving the transcript into evidence, and it was offered for this limited purpose (People v. Feld, 305 N.Y. 322, 331-332).48
Lubow also argues that there was no proper allocation of the respective persons speaking. But as to the tape itself, which was played for the court while the transcript was being used as an aid, counsel for Lubow at the trial agreed with the summary of the court that his objection to the recording was "not on the ground of continuity, not on the ground of identification, but on the ground * * * it interfered with his constitutional rights, and that it is cumulative".4950
 Herbert Wechsler, Chief Reporter, Model Penal Code; William Kenneth Jones, Special Consultant, Model Penal Code, and Harold L. Korn, Special Consultant, Model Penal Code, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Col. L. Rev. 571, 622.52
 Richard G. Denzer, Executive Director of the Commission on Revision of the Penal Law and Criminal Code, and Peter McQuillan, Counsel to the Commission, Practice Commentary to Penal Law, art. 100, McKinney's Cons. Laws of N. Y., Book 39, Penal Law, p. 169.53
Court of Appeals of the State of New York.
Edward J. Nowak, Public Defender of Monroe County, Rochester, for Christopher Allen and others, appellants.9
Mark F. Cianca, Rochester, for Daniel Giallombardo, appellant.10
Harris Beach & Wilcox, Rochester (Michael J. Masino of counsel), for Brandon McPhee, appellant.11
Cerulli and Massare, Rochester (Matthew R. Lembke of counsel), for Emily Vega, appellant.12
Howard R. Relin, District Attorney of Monroe County, Rochester (Thomas Rainbow Morse of counsel), for respondent.13
Chief Judge KAYE and Judges LEVINE and CIPARICK concur with Judge SMITH; Judge BELLACOSA concurs in result in a separate opinion in which Judge WESLEY concurs.1415
In these 54 criminal cases, combined for the purposes of this appeal, we consider what effect, if any, the exemption provision under Penal Law § 100.20 has on the prosecution of these similarly situated defendants. In each of the cases the trial court concluded that application of the exemption statute was required and, as a result, that dismissal in all cases was warranted. On appeal, that decision was reversed and the accusatory instruments were reinstated. The defendants were granted leave to appeal by several of the Judges of this Court, and, 381*381 upon our full consideration, we conclude, under the facts presented here, that the exemption statute must be applied. Any further prosecution of these criminal cases is therefore precluded.16
Each of the cases is factually similar and identically charged. The arrests themselves resulted from a series of "reverse sting" operations conducted by the Rochester City Police Department during April of 1995. In the undercover operation, police officers posed as street marihuana dealers in an effort to lure "would-be" buyers into their sting. Rather than offer actual marihuana, the officers surreptitiously used only oregano. Notwithstanding, the undercover operation itself was a remarkable success.17
Following each exchange of cash for oregano, the "would-be" buyer was arrested and charged with criminal solicitation in the fifth degree, a violation and not a crime under Penal Law § 100.00. Prior to trial, the defendants moved the Rochester City Court to dismiss the solicitation charges and the accusatory instruments. In support, the defendants argued that their conduct of attempting to purchase marihuana fell within the meaning of the Penal Law's solicitation exemption statute (Penal Law § 100.20). Therefore, the defendants urged that a legal impediment existed and barred their prosecution on charges of solicitation. The trial court agreed and dismissed the charges and the accusatory instruments.18
On appeal, the County Court of Monroe County reversed and reinstated the charges. In ruling, County Court concluded that the defendants' conduct did not fall within the meaning of the solicitation exemption statute because their conduct was not of a kind which is "necessarily incidental" to the crime which they had intended to solicit. Thus, County Court ruled that application of the exemption was not required, and that the 54 criminal cases need not fail. We granted the defendants leave to appeal.19
Penal Law § 100.00 reads as follows:20
"A person is guilty of criminal solicitation in the fifth degree when, with intent that another person engage in conduct constituting a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct."21
382*382 Two of the elements of a violation of criminal solicitation in the fifth degree are: (1) the soliciting party must possess a specific intent that another person engage in conduct constituting a crime; and (2) there must be an affirmative solicitation, request, command or some other type of attempt aimed at causing such other person to commit such crime. Even where the elements of solicitation are properly pleaded and charged, by legislative command of Penal Law § 100.20, the initial inquiry of the court has not altogether come to an end.22
Entitled "Criminal solicitation; exemption", Penal Law § 100.20 states:23
"A person is not guilty of criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime solicited. When under such circumstances the solicitation constitutes an offense other than criminal solicitation which is related to but separate from the crime solicited, the actor is guilty of such related and separate offense only and not of criminal solicitation."24
Thus, the statute requires that a court search beyond the four corners of the accusatory instrument and decide whether or not the charged conduct falls within reach of the exemption language. In cases where it is found that the exemption statute applies, a legal impediment to conviction exists. Where a related but separate crime is found to exist, prosecution of the related but separate crime may proceed to the fullest extent of the law. However, it is by falling into this class of legislatively exempted cases that the 54 prosecutions at issue in this case fail.25
In the instant cases, the People urge that the solicitation exemption should not apply in that the defendants' conduct was not necessarily incidental to the commission of a criminal sale of marihuana. In support, the People direct our attention to People v Lubow (29 N.Y.2d 58), where it was stated that the criminal solicitation statutes were enacted to fill the gap created when conduct falls short of an attempt to commit a crime, but "`involves sufficient culpability to warrant criminal sanctions'" (People v Lubow, 29 NY2d, at 65). While such a pronouncement still rings as true today, this in no way serves to explain away the Legislature's enactment of the solicitation exemption statute. Moreover, such a pronouncement does not offer this Court a haven from our duty to see that the Legislature's 383*383 commands are properly carried out. In matters of statutory construction, "`legislative intent is "the great and controlling principle"', and our proper judicial function is to `discern and apply the will of the Legislature'" (Matter of Scotto v Dinkins, 85 N.Y.2d 209, 214, quoting Matter of Sutka v Conners, 73 N.Y.2d 395, 403).26
Some lower courts have previously held that section 100.20 can be interpreted to apply only in circumstances where there exists a related but separately chargeable criminal offense (see, People v Barnes, 170 Misc 2d 979 [interpreting People v Manini, 79 N.Y.2d 561]; People v Spencer, 66 Misc 2d 658). Our review of the statute does not allow us to reach the same conclusion.27
As the "would-be" buyers in these cases, the defendants are accused of soliciting the occurrence of a criminal sale of marihuana. In a typical criminal sale of marihuana, the existence of a willing buyer is a prerequisite to the commission of the completed crime. At a minimum, a criminal sale of marihuana requires the existence of some interrelationship as between the seller and another person (see, Penal Law §§ 221.00, 220.00 ). While it may be true that under Penal Law § 220.00 (1), liability for a criminal sale can arise upon a mere disposal, offer or agreement to sell, that Penal Law provision focuses upon the conduct of the seller. Here, conversely, the exemption statute commands the court to focus upon the conduct of the soliciting party. Upon examination of the conduct engaged in by these defendants, it is clear that a criminal sale of marihuana could not have occurred but for their direct participation. Therefore, their conduct was necessarily incidental to the commission of the completed crime.28
In People v Manini (supra), this Court was faced with the interpretation of a similar Penal Law exemption statute, Penal Law § 20.10. Although Manini dealt with accomplice liability, as opposed to liability for solicitation, the exemption statute dealt with there is similar to the one here in that both statutes exempt from liability conduct which is "necessarily incidental" to the commission of the underlying crime or offense. There, interpreting Penal Law § 20.10, we concluded that in a prosecution 384*384 against a buyer for his or her criminal possession of the controlled substance bought, the "necessarily incidental" language of the exemption statute forbade the imposition of liability upon the seller as an accomplice to the possessory offenses of the buyer. We reasoned in Manini that "it is far more likely that the purchaser's possession resulted from a sale" (People v Manini, supra, at 571), and in these cases conclude that similar reasoning applies. Therefore, following the occurrence of a marihuana sale, the seller is criminally liable for the sale and the buyer is criminally liable for the resulting possession. By command of Penal Law § 100.20, however, neither is liable for the solicitation of the other.29
It should be noted that in the "Marihuana Reform Act of 1977" (L 1977, ch 360), the Legislature excluded marihuana, except concentrated cannabis, from within the definition of controlled substances. Moreover, the Legislature's intent in its passage of the Act was to "reduce the penalties for possession and sale of marihuana and in particular to `decriminalize' the possession of a small amount of marihuana for personal use" (Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law art 221, at 84). Such a goal is inapposite to the exposure of smaller quantity purchasers, such as the ones we deal with here, to the harsher penalties imposed upon those convicted of criminal solicitation. By this, we do not mean to suggest that in a case where a third party is charged with soliciting the occurrence of a marihuana transaction between two other individuals, that the third party might not properly be subject to the penalties imposed for a criminal solicitation. But, under the facts of these cases, an illogical result would be achieved were we to hold that a person charged in a foiled attempt to purchase noncriminal amounts of marihuana (see, Penal Law § 221.05 et seq.) is subject to a harsher penalty than could be imposed upon one guilty of an actual purchase and possession of marihuana. If such a result was intended by the Legislature, the purchase of marihuana could have been criminalized in article 220 of the Penal Law. Or, in the alternative, the exemption statute under Penal Law § 100.20 could affirmatively compel the court to reach such a result.30
Finally, we briefly address the defendants' remaining contentions that the 54 accusatory instruments suffer from a jurisdictional defect. The first of these claims rests upon the premise that the allegations in the accusatory instruments are averred in a wholly conclusory manner. Thus, the defendants claim that the accusatory instruments fail to meet the requirements 385*385 of the Criminal Procedure Law. Each of the 54 accusatory instruments is identical and, in substance, alleges:31
"THAT YOUR COMPLAINANT IS A POLICE OFFICER EMPLOYED BY THE ROCHESTER POLICE DEPARTMENT, AND THAT ON THE ABOVE DATE, TIME AND AT THE ABOVE STATED LOCATION, THE ABOVE NAMED DEFENDANT(S), WITH INTENT THAT ANOTHER PERSON ENGAGE IN CONDUCT CONSTITUTING A CRIME, HE SOLICITED, REQUESTED, COMMANDED, IMPORTUNED OR OTHERWISE ATTEMPTED TO CAUSE SUCH OTHER PERSON TO ENGAGE IN SUCH CONDUCT, TO WIT: THE DEFENDANT DID SOLICIT AN UNDERCOVER POLICE OFFICER TO SELL THE DEFENDANT MARIHUANA."32
In ruling on the merits of this same challenge, the trial court concluded that although the factual allegations in the accusatory instruments could be described as "bare boned", they were legally sufficient to support the solicitation charges. We agree. The factual allegations are sufficiently evidentiary in character and tend to support the Penal Law charges. Furthermore, the allegations establish reasonable cause to believe and a prima facie case that the defendants are guilty in their commission of the crime (see, CPL 100.15 ; 100.40  [c]; People v Alejandro, 70 N.Y.2d 133). At the pleading stage, nothing more is required, and we thus reject the defendants' argument that the requirements of the Criminal Procedure Law have not been met.33
We further reject the defendants' argument that an accusatory instrument charging the crime or offense of solicitation is required to contain a specifically enumerated Penal Law section or statutory degree of the crime charged as having been solicited. In the circumstances of this case, since any sale of marihuana is a crime, no further or more specific allegations were required. No "noncriminal" sale of marihuana could have been intended to occur. Thus, we find that the solicitation charges were satisfactorily pleaded, and thus conclude that the trial court was correct to deny the defendants' motions on these grounds.34
Accordingly, the order of the County Court should be reversed, and the order of the Rochester City Court reinstated.35
BELLACOSA, J. (concurring).36
Respectfully, I concur only in the result on a narrower basis than the majority opinion adopts.37
A reversal and dismissal of charges are warranted, in my 386*386 view, solely for the reason that any other outcome in these cases would produce an anomalous and absurd statutory interpretation of Penal Law §§ 100.00 and 100.20, that would be substantially at odds with the Legislature's directed goal in chapter 360 of the Laws of 1977 (The Marihuana Reform Act).38
The majority's rationale seems to me to permit, theoretically and precedentially, a more expansive availability of the exemption provision (Penal Law § 100.20) in other criminal solicitation scenarios not presented by the uniform fact pattern of these cases. Since I conclude that a wider rationale is not necessary to the resolution of these cases and could produce unwarranted implications and outcomes in different future cases, I vote to reverse on the narrowest possible basis.39
Order reversed, etc.40
 Our decision today is not intended to affect any of the additional unrelated criminal charges which might be pending against these 54 individuals.41
 Penal Law § 20.10 provides that "a person is not criminally liable for conduct of another person constituting an offense when his own conduct, though causing or aiding the commission of such offense, is of a kind that is necessarily incidental thereto. If such conduct constitutes a related but separate offense upon the part of the actor, he is liable for that offense only and not for the conduct or offense committed by the other person."42
Appellate Division of the Supreme Court of the State of New York, Second Department.
Lazer, J. P., Thompson, Niehoff and Boyers, JJ., concur.
Judgment modified, on the law, by reducing the conviction of robbery in the first degree to one of robbery in the third degree, by vacating the convictions of criminal possession of a weapon in the second degree and criminal use of a firearm in the first degree and dismissing those counts, and by vacating the sentence imposed. As so modified, judgment affirmed, and case remitted to Criminal Term for resentencing in accordance herewith.
On the afternoon of December 18, 1980, defendant's paramour admitted codefendants Mercado and Aviles into defendant's Brooklyn apartment. Mercado sat down in the kitchen, placed a black gun on the table, and told defendant that he had a "job" ready which needed a third person, and that defendant was coming with him. When defendant stated that he did not want to go, Mercado turned nasty, loud and angry and told defendant that if he knew what was good for him and his family he would go along. Defendant was afraid of Mercado because he knew of Mercado's reputation for violence. Since he also feared for the safety of his paramour and son, he eventually capitulated.
Mercado left the premises for about 15 minutes to change the license plates on his car, but defendant did not try to leave or telephone the police. After Mercado returned, he, defendant and Aviles rode in his car to a jewelry store on Queens Boulevard in Forest Hills. When they arrived at the store, defendant was directed to stand on a divider on the opposite side of the street from the store. He was supposed to enter the store as soon as he saw Mercado walk in. Despite these instructions, defendant stood on the divider for about five minutes after Mercado had already entered the store. He did not try to flee the area or abandon the enterprise.
Aviles entered the store first and complainant and his 74-year-old mother attempted to sell him a medallion. When Mercado entered, both men pointed black guns at complainant and his mother and announced a robbery. Mercado herded them into a back room while Aviles started taking jewelry. Defendant then arrived and Aviles let him in. Shortly thereafter, a police officer came by, realized what was happening and kicked in 496*496 the glass front door. The perpetrators then took complainant and his mother as hostages and attempted to leave the store.
The police officers on the scene took cover behind parked automobiles. As the perpetrators were leaving, one of the officers apprehended Mercado. However, defendant had his arm around complainant's mother's neck and Aviles was staying close to her. The two men dragged her down the block telling the officers to stay back. Aviles then moved away from her, put his right hand in his coat and went into a crouching position. The police opened fire and struck Aviles at least three times. Defendant was then grabbed by another officer and arrested.
The perpetrators were frisked and found to be unarmed. The police immediately searched the store and found three blue .38 caliber revolvers hidden in the back of the store. No black guns were ever found. The three guns were subsequently tested for fingerprints and the results were negative.
After a joint nonjury trial, Mercado, Aviles and defendant were convicted of robbery in the first degree based upon use of a deadly weapon, criminal possession of a weapon in the second degree and criminal use of a firearm in the first degree. The court stated that defendant failed to prove an affirmative defense of duress. During the trial, no evidence was adduced connecting the blue guns found by the police to Mercado, Aviles or defendant. No other proof was offered to show that Mercado, Aviles or defendant used loaded and operable weapons.
Defendant's conviction on the charges of robbery in the first degree and criminal use of a firearm in the first degree were based on the use of a deadly weapon (Penal Law, § 160.15, subd 2; § 265.09, subd ). In order for a gun to be considered deadly, it must be proven that the gun was loaded and operable (Penal Law, § 10.00, subd 12; People v Howard, 37 AD2d 178). In addition, criminal possession of a weapon in the second degree requires proof that the gun was loaded (Penal Law, § 265.03). Since there was no proof that a loaded and operable firearm was used, defendant's convictions for criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree should be reversed and those counts dismissed.In addition, the charge of robbery in the first degree should be reduced to the lesser included offense of robbery in the third degree, i.e., that the defendant forcibly stole property (Penal Law, § 160.05; see People v Moy, 56 AD2d 853). In view of the foregoing, this case is remitted to Criminal Term for resentencing (CPL 470.20, subd 4).
Defendant's claim of duress is without merit. By his own testimony, defendant described numerous opportunities to abandon his criminal activity and escape Mercado's acts of duress. A defense of duress may not be used when the force or threat used is incapable of immediate realization (People v Brown, 68 AD2d 503). Also, on several occasions, as when he went into the store after being left alone for five minutes, defendant voluntarily put himself back in a position where he could be subjected to duress. Thus, a duress defense was not established (Penal Law, § 40.00, subd 2; People v Irby, 61 AD2d 386).
Defendant also claims that several procedural errors were made during the trial that require a reversal. The court erred in not allowing defendant to present evidence showing his state of mind as to knowledge of Mercado's bad and violent reputation. That evidence was excluded in order to avoid prejudicing Mercado's defense, although defendant's knowledge of specific violent incidents involving Mercado was a key element in defendant's defense of duress (see People v Miller, 39 N.Y.2d 543; People v Colgan, 50 AD2d 932). In the case at bar, however, the court admitted evidence of threats made by Mercado to defendant. Also, in its determination, the court acknowledged that defendant was afraid of Mercado due to Mercado's reputation for violence. These facts, plus the overwhelming evidence of defendant's guilt, render this error harmless (People v Crimmins, 36 N.Y.2d 230).