The prosecution was unable to refute the version of defendants 2 and 3, beyond a reasonable doubt.
However, in view of this mistake of the defendants with regard to the details of the offense, the rule stated in section 34H(a) of the Penal Law applies to them. In other words, "one who commits an act in his own image that does not exist, will not bear criminal responsibility except to the extent that he would have borne it if the situation were in fact as it imagined him."
If so, the criminal responsibility of defendants 2 and 3, who fled the murderers from the murder area, should be held "to the extent" they would have borne, if the situation had really been as they imagined – that is, that it was a plan to receive a stolen "hydro" for distribution.
In his summary, the defense counsel for these defendants did not dispute the aforesaid conclusion (pp. 366-367, of the minutes of March 9, 2025), in his words, "Conspiracy was, I said it from day one, there is a conspiracy to steal drugs, or a slightly more sophisticated offense in the field of drugs" (p. 366). He later suggested that this was an "attempted" offense to commit a drug offense. However, according to him, the matter did not amount to a perfect drug offense, since "they did not come to the execution" (ibid.).
It is clear that defendants 2 and 3 cannot be convicted of the perfect offense of possession of a drug, since the drug did not exist and was not created. The defense attorney is correct that we are in fact dealing with an act of conspiracy to commit an offense, and essentially we are also dealing with an attempt to obtain the same imaginary drug. The question is whether it is possible to be convicted of the perfect offense of committing a "different transaction" with a drug, one of the alternatives under Section 13 of the Dangerous Drugs Ordinance.
Admittedly, there is a great similarity between the elements of the offense of conspiracy to commit a drug transaction, and the offense of "other transaction" in the drug. However, as was clarified in criminal appeal 4938/94 Shmerling v. State of Israel, IsrSC 50(5) 181 (1996), a distinction must be made between two situations: "Where a person enters into a relationship with a brother who will purchase a drug for him, the relationship in itself constitutes a 'different transaction' in the drug; In contrast to a situation in which a number of people conspire together to purchase a drug jointly, in which case their engagement is reduced to a mere "conspiracy", which does not carry the hallmarks of making a "transaction", and a "transaction" is formed between two parties with a "different" interest; As opposed to a "relationship" that develops between two people who have an "identical" interest. Where the engagement creates one "extended" party, it does not express the making of a "transaction", because a transaction is perfected between two or more parties – and is never the domain of one party. On the other hand, instead of the engagement formulating a connection between two "different" parties, a "transaction" is also perfected between the two, in addition to the relationship."