Criminal facilitation is an inchoate crime, like “attempt, “solicitation,” and “conspiracy.” You don’t actually do the crime, but you do something that helps someone commit a crime. You don’t need to participate in the crime in any way, or even benefit from it.

A common example of this is selling a firearm to someone who you know probably intends to use it to commit a crime.  By selling them the gun, you provide the means or opportunity for them to do it.

It is criminal facilitation if you provide someone who intends to commit a crime with  the means or opportunity to commit a crime, believing it’s probable they intend to commit a crime, and in fact, it does help the person commit a felony.

Crime Committed

The mental state of the defendant is key. It is necessary for the defendant to have believed it’s probable that the person intends to commit a crime – meaning any misdemeanor or felony.

But then, when the crime is committed, it must turn out to be a felony. If the person, in fact, commits a misdemeanor, instead of a felony, it is not facilitation, as long as the perpetrator was over 15.

For example:

• Directing a purchaser to the address of a dealer to buy marijuana is not criminal facilitation since it facilitates the purchase of marijuana, and purchasing marijuana is a misdemeanor, not a felony.

Helping someone commit a misdemeanor is not criminal facilitation. Similarly, helping someone rent a house to be used for prostitution is not criminal facilitation, since promoting prostitution is a class B misdemeanor, not a felony.

Crime Must Take Place

Facilitation is different than the other inchoate crimes, like attempt, solicitation, or conspiracy, because, with facilitation, the crime must, in fact, take place. The actual crime must be consummated. When a person tries to help someone who they know intends to commit a crime, but the crime is never committed, there is no criminal facilitation.

Intent Required

Facilitation differs from being an accomplice, because to be criminally liable as an accomplice, you must act with the mental culpability required for the commission of the principal crime. You can be a facilitator without having any intent to commit a crime. But you must have a belief that you are probably aiding another person to commit a crime.

You don’t intend to commit the crime, but you believe the other person probably does, and you do something that knowledge helps them accomplish their goal.

Intent to aid the person is required.  The prosecution must prove that it was your conscious objective or purpose to provide the person with the means or opportunity to commit the felony.

In addition, the prosecution must prove that the conduct of the defendant did, in fact, aid in the commission of the felony.

What are the proofs that the prosecution must provide?

The facilitator must believe that he or she is probably rendering assistance to a person who intends to commit a class A felony at the time aid is given.The prosecution must prove that you believed that it was probable that you were helping the person commit a crime.

You don’t have to know or be sure, the person intends to commit a crime, only that they probably intend to commit a crime.

So to convict you of facilitation in the fourth degree, the prosecution must prove, beyond a reasonable doubt, all the following:

1. You provided a person with the means or opportunity to commit a crime, and
2. You believed it was probable that the person intended to commit the crime, and that you were rendering aid for the person to do so; and
3. Your conduct did, in fact, aid the person to commit a felony.

Drug Sale Cases

Facilitation often comes up in the context of drug sales. For example:

• If a person tells another person where they can score marijuana, it can be argued they are aiding the dealer to commit a crime of selling drugs. They make the connection between the buyer and the seller, without which a sale cannot occur.

The person who intends to commit the crime must have that intent at the time you facilitate the crime.  If the person does not intend at the time you provide the assistance to commit the crime, even though you know it is probable, he will form that intent later,  and it is not facilitation.

Thus, referring a potential buyer to a drug dealer is not criminal facilitation of the drug sale, since, at the time of the referral, the dealer does not even know the potential buyer, and therefore cannot have any present intent to sell to him.

Therefore many facilitation cases have been found insufficient, where the defendant merely directs the potential customer to the drug dealer.

If on the other hand, you don’t just direct the purchaser to an address, but also actively participate, with the seller, in the transaction, you then clearly know the seller intends to commit the crime. For example:

• If you accompany the buyer and introduce them to the seller, the active participation in the consummation of the sale proves knowledge that the dealer is committing a felony, so by providing the dealer with the opportunity to make the sale, it is a classic example of criminal facilitation.

Similarly, if you transfer “buy money” from one drug dealer to another after the sale, it becomes a sufficient integral part of the sale to support criminal facilitation.

• Doormen have been convicted of the criminal facilitation of drug sales. Serving as a lookout at a social club, directing a purchaser to the drug seller to consummate the transaction, then unlocking an exit door for the purchaser to leave on the signal from the seller, was held to be sufficient evidence of criminal facilitation.

But merely yelling “police, police” and knocking on the door of an apartment where drugs were found was not sufficient, since there was no evidence this helped the occupants possess the drugs. Their crime of possession had already occurred; the warning did not facilitate that occurring.

• Leaving a victim’s door unlocked can be criminal facilitation, as can cutting stockings for use as masks to use in a robbery.
• Intentionally maneuvering a person to a spot where another person has the opportunity to shoot the victim is criminal facilitation in the second degree, as is the conduct of a caretaker of a building allowing a perpetrator to meet a victim in the building, getting other tenants to leave the building, knowing he intends to commit murder.

Less commonplace examples where defendants were convicted of criminal facilitation are company employees submitting fraudulent claims for Medicaid reimbursement, and premise owners arranging access to their building so burglars could steal property, enabling the owners to make fraudulent insurance claims then.

Degrees of Facilitation

The law recognizes that aiding someone who is going to commit a crime, but not participating in the crime, does make you less responsible than the actual perpetrator. There are four different degrees to the crime.  The differences lie in either the age of the person being facilitated, or whether you believe the crime intended to be committed a felony, or just a crime.

Intended Crime

The degree of your crime depends on what crime you believed you were helping the person commit.

If you believe you’re helping someone commit a crime, but not a felony, but then they in fact to commit a felony, it is fourth-degree facilitation, a class A misdemeanor.

If you believe it’s probable they intend to commit a class A felony, and they do, it is second-degree criminal facilitation, a class C felony.

Age of Person Committing the Crime

The age of the person who commits the crime is also important.  If you are over 18 and help someone who is under 16 commit a crime – not necessarily a felony, but any crime – it is a class A misdemeanor. If they intend to commit a felony, helping them is third-degree criminal facilitation, a class E felony.

If they intend to commit a class A felony, helping them is first-degree criminal facilitation, a class B felony.

Defenses

It is no defense that the person was not charged or convicted of the crime, as long as the felony does, in fact, take place. It is not a defense that the person facilitated was acquitted after trial of the underlying felony.

Nor is it a defense that the person who committed the crime lacked the mental capacity for criminal responsibility. A 15-year-old may be acquitted, because of their age, but helping them, if you’re over 18, is still a crime.

It is an affirmative defense if you try and prevent the commission of the felony before it occurs.

Corroboration Required

Testimony of the person who committed the crime is not enough to convict. There must be corroborative evidence – other evidence, besides the testimony – connecting the defendant with the facilitation.

The requirement of corroboration recognizes that certain types of testimony are inherently untrustworthy because those with a crime over their head often seek to reduce their sentences by implicating others.The purpose of corroborative testimony is to protect against motivated fabrication by a self-interested perpetrator.Corroborative evidence means independent evidence.

There can be no reliance on the testimony of the perpetrator. It cannot depend on the testimony of the perpetrator. The defendant should attempt to give innocuous reasons for the alleged connections offered by the corroborative evidence.

Making Available a Gun

Before 2013, merely giving a gun to an unlicensed person who uses it to commit a felony was not criminal facilitation, absent proof of a belief that it was the weapon would be used to commit a crime. In 2013, the law was amended to add a definition that said that facilitating conduct includes making available a gun that aids a person to commit a crime.

The provision was one of a number of provisions passed to tighten gun control in New York state. Part of the new law requires safe storage requirements for rifles, shotguns, and firearms. The law defines a “community gun” as a firearm that is shared, made available, sold, exchanged, given or disposed of between two or more persons, one of whom is not authorized to possess the firearm.

If you live with someone who is not authorized to possess a gun, you must keep it secured in a safe storage depository, like a safe, or secure container with a lock. Or render it incapable of being fired. If instead, you place it where you know it is accessible to others, at least one of which is not authorized or licensed to have a gun, and they commit a crime with it, you are guilty of criminal facilitation.

Facilitating Sexual Performance by Child

In 1977, the legislature concluded that there had been a proliferation of exploitation of children for sexual performances, through movies, magazine, and photographs, and passed the Sexual Assault Reform Act, prohibiting the use of children under 16 (in some circumstances, 17) for sexual performances.

Performances refer to plays, motion pictures, photographs, or dance, or any other visual representation to an audience. The laws cover customers of child sexual performances, including any digitally stored images stored on a personal computer.  It does not require a public performance.

The facilitation laws were added in 2008 to fill in any gaps in the sexual performance laws by making it a class B felony to facilitate any use of children for such crimes, by giving them alcohol, prescription medication or a controlled substance intending to induce them to perform sexually.

[1] “Aiding and abetting” is a term also used to refer to “criminal facilitation.”

[2] People v. Gordon, 36 N.Y.2d 154, 365 N.Y.S.2d 836, 325 N.E.2d 156                (1975).

[3] People v. Mejia Real Estate, 176 Misc. 2d 316, 672 N.Y.S.2d 645 (SC Queens Co 1998).

[4] People v. Mejia Real Estate, 176 Misc. 2d 316, 672 N.Y.S.2d 645 (SC Queens Co 1998).

[5] Penal Law § 20.00.

[6] People v. Sanchez, 57 A.D.3d 1, 866 N.Y.S.2d 78 (1st Dep’t 2008).

[7]  People v Puig, 85 Misc. 2d 228, 378 N.Y.S.2d 925 (SC NY Co 1976).

[8] People v. Bell, 286 A.D.2d 772, 730 N.Y.S.2d 732 (2d Dep’t 2001).

[9] People v. Gordon, 32 NY2d 62 (1973).

[10] People v Watson, 20 N.Y.3d 182, 981 N.E.2d 265, 957 N.Y.S.2d 669 (2012).

[11]  People v Schoen, 136 Misc. 2d 851, 519 N.Y.S.2d 304 (SC NY Co 1987).

[12]  People v Edwards, 273 A.D.2d 249, 708 N.Y.S.2d 638 (2d Dep’t 2000).

[13]  People v Armstrong, 160 A.D.2d 206, 553 N.Y.S.2d 169 (1st Dep’t 1990).

[14]  People v Llanos, 77 N.Y.2d 866, 568 N.Y.S.2d 723, 570 N.E.2d 1072 (1991).

[15]  People v Cable, 96 A.D.2d 251, 468 N.Y.S.2d 470 (1st Dep’t 1983).

[16]  People v Letizia, 122 A.D.2d 555, 504 N.Y.S.2d 945 (4th Dep’t 1986). 

[17] People v Polk, 84 A.D.2d 943, 446 N.Y.S.2d 678, (4th Dep’t 1981).

[18] People v Ferrer, 258 A.D.2d 469, 685 N.Y.S.2d 105 (2d Dep’t 1999).

[19]  People v Meredith, 256 A.D.2d 641, 682 N.Y.S.2d 250 (3d Dep’t 1998).

[20] People v. Mahboubian, 74 N.Y.2d 174, 543 N.E.2d 34, 544 N.Y.S.2d 769 (1989).

^[21] Penal Law § 115.00

^[22] Penal Law § 115.05.

^[23] Penal Law § 115.00

^[24] Penal Law § 115.01.

^[25] Penal Law § 115.08

[26] People v. Mahboubian, 74 N.Y.2d 174, 543 N.E.2d 34, 544 N.Y.S.2d 769 (1989).

[27] People v Oleksowicz, 101 A.D.2d 119, 476 N.Y.S.2d 146 (2d Dep’t 1984).

^[28] Penal Law § 115.10.

^[29] Penal Law § 40.10(2).

^[30] Penal Law § 115.15.

[31] See People v. Hudson, 51 N.Y.2d 233, 238, 414 N.E.2d 385, 433 N.Y.S.2d 1004 (1980).

[32] See People v. Hudson, 51 N.Y.2d 233, 238, 414 N.E.2d 385, 433 N.Y.S.2d 1004 (1980).

[33] See People v. Hudson, 51 N.Y.2d 233, 238, 414 N.E.2d 385, 433 N.Y.S.2d 1004 (1980).

[34] People v. Harrison, 71 Misc. 2d 782, 337 N.Y.S.2d 13 (SC Bx Co 1972).

[35] Penal Law § 265.45.

^[36] Penal Law § 115.20.

[37] Penal Law §§ 263.00 et seq.

[38] People v Fraser, 264 A.D.2d 105, 704 N.Y.S.2d 426, aff’d, 96 N.Y.2d 318, 728 N.Y.S.2d 115, 752 N.E.2d 244 (2001). 

[39] Penal Law § 263.30