It may be apocryphal, but a former Mayor is reported to have said, "I would rather write the nation’s songs than make its laws”. I would rather do the latter. On the basis of the law and facts herein, I dissent and would affirm defendant’s conviction in toto.
The evidence consisting of testimony from an undercover police officer as well as tape recordings of intercepted telephone conversations between defendant, his brother, and others and testimony by officers of visual surveillance of defendant showed he took part in a large and ongoing conspiracy to distribute cocaine. It also proved an attempt by defendant to possess a kilo of cocaine on March 21, 1988.
Contrary to the conclusion reached by the majority, the facts in the case before us demonstrate that the defendant had the intent to commit a crime and engaged in conduct tending to effect the commission of such crime (Penal Law § 110.00). There was the required "showing that defendant committed an act or acts that carried the project forward within dangerous proximity to the criminal end to be attained” (People v Warren, 66 NY2d 831, 832). While the majority recounts the facts of Warren (supra), at great and accurate detail, these simply reaffirm and emphasize the different posture of the facts before us. In Warren, potential buyers of drugs dealt with an informer and an undercover officer posing as sellers. The Court of Appeals found defendants did not come "near to the accomplishment of the intended crime. The planned purchase was to take place hours later, in another part of town, after testing. At the time they were arrested, defendants did not possess sufficient funds to make the purchase, and the informant and the police officer did not have sufficient cocaine to make the sale. Thus, several contingencies stood between the agreement in the hotel room and the contemplated purchase”. (Supra, at 833; emphasis added.)
In this case, there was evidence that defendant was at*108tempting to secure a large amount of cocaine for an individual named "Frank”. On March 21st, officers watched as a man walked into defendant’s apartment building carrying a weighted-down plastic bag and 15 minutes later came out with the same bag, still weighted down. Minutes later defendant called "Frank” and told him he had just been shown a broken-down kilo of cocaine but refused it because it was of poor quality. This evidence, which was partly circumstantial but also consisted of direct, incriminating statements by defendant, indicated defendant was ready to purchase the cocaine brought him and would have done so if the quality was better. Thus, defendant not only had the intent to possess but also took a step toward "carrying] the project forward within dangerous proximity to the criminal end to be attained” (People v Warren, supra, at 832). While the majority speaks of the defendant’s "flat rejection” of the offer of cocaine, if defendant had accepted the cocaine, he would have been guilty of "actual” possession not merely attempted possession.
Accordingly, defendant was properly convicted of attempted criminal possession.
Carro, J. P., and Kassal, J., concur with Wallach, J.; Kupferman and Asch, JJ., dissent in separate opinions.
Judgment, Supreme Court, New York County, rendered July 27, 1989, is modified, on the law, to dismiss the attempted possessory count and to vacate its resultant sentence, and otherwise affirmed.