| People v Guthrie |
| 2008 NY Slip Op 09869 [57 AD3d 1168] |
| December 18, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kenneth Guthrie,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp, Law Intern), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered September 5, 2007, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree.
Defendant was convicted following a jury trial of criminal sale of a controlled substance in the thirddegree and was sentenced, as a second felony offender, to a prison term of 7½ years, followedby three years of postrelease supervision.
Initially, we find that there was legally sufficient evidence for the jury to reject defendant's agencydefense. "[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, isgenerally a factual question for the jury to resolve on the circumstances of the particular case"(People v Lam Lek Chong, 45 NY2d 64, 74 [1978], cert denied 439 US 935[1978]; see People v Nealon, 36 AD3d1076, 1077 [2007], lv denied 8 NY3d 988 [2007]). Here, in satisfying their burden ofestablishing that defendant knowingly and unlawfully sold narcotic drugs (see Penal Law§ 220.39 [1]), the People presented testimony from several City of Albany police detectives anda confidential informant, all of whom described their roles in, and observations of, the undercoverbuy-and-bust operation that led to defendant's arrest. The testimony established that after detectivessearched the confidential informant and fitted him with a recording device, he was dropped off in thearea of Central Avenue in Albany County to assist [*2]in the controlleddrug buy. Once there, the confidential informant encountered defendant, a complete stranger whoappeared to be under the influence of drugs. The confidential informant asked him if he could help himget $40 worth of crack cocaine. Defendant immediately told him to stay put while he went to his"nephew"[FN*]about 20 yards away to get the crack cocaine. Defendant then approached a nearby individual and,upon returning, handed the confidential informant a bag containing a substance that later tested positivefor crack cocaine in exchange for $40. Following the completion of the transaction, defendant returnedto his "nephew." Based upon the confidential informant's description, defendant was arrested a shorttime later.
Viewing the evidence in a light most favorable to the People, and according them every reasonableinference, we find that this evidence, which evinces defendant's role as more than just a buyer's agent inthe drug transaction, amply supports the jury's rejection of the proffered agency defense (seePeople v Sheppard, 273 AD2d 498, 499 [2000], lv denied 95 NY2d 908 [2000];see also People v Herring, 83 NY2d 780, 782-783 [1994]). Furthermore, in the exercise ofour factual review power and according deference to the jury's credibility determinations, we concludethat the verdict is supported by the weight of the evidence (see People v Bleakley, 69 NY2d490, 495 [1987]; People v Delaney, 42AD3d 820, 821 [2007], lv denied 9 NY3d 922 [2007]; People v Stephens, 31 AD3d 890, 891[2006], lv denied 7 NY3d 870 [2006]).
Next, contrary to defendant's contention, we find no abuse of discretion in County Court decliningto issue a missing witness charge as to the lead police detective in the controlled drug buy. Nothing inthe record establishes that the detective's testimony would have been different from or inconsistent withthe testimony already provided by other witnesses involved in that operation (see People vSavinon, 100 NY2d 192, 197 [2003]; People v Buckler, 39 NY2d 895, 897 [1976]).
Finally, our review of this record demonstrates no abuse of discretion or extraordinarycircumstances warranting a modification of the sentence in the interest of justice (see People v Holman, 53 AD3d 775,776 [2008]).
Spain, Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: The confidential informant testifiedthat "nephew" is street slang and does not denote a familial relationship.