| People v Mitchell |
| 2013 NY Slip Op 08300 [112 AD3d 1071] |
| December 12, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vDelceta Mitchell, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme Court (Teresi, J.), rendered May15, 2012 in Albany County, upon a verdict convicting defendant of the crimes ofcriminal sale of marihuana in the second degree and criminal sale of marihuana in thethird degree (two counts).
Defendant was indicted and, after a jury trial, convicted as charged of criminal saleof marihuana in the second degree and two counts of criminal sale of marihuana in thethird degree. The charges stem from defendant's sale of marihuana to a confidentialinformant during controlled buys conducted and overseen by the State Police on threeoccasions in April, May and July 2010. The informant, wearing a wire, made thepurchases with prerecorded buy money provided by the police, inside the combinedrestaurant and grocery store operated by defendant in the City of Albany. State Policeforensic scientists testified that they performed three independent tests on each substancepurchased from defendant, all of which confirmed that the substances were marihuana,and that they had respective aggregate weights of 113.8 grams (April sale), 106.9 grams(May sale) and 115 grams (July sale). Upon her convictions, defendant was sentenced toan aggregate prison term of two years followed by one year of postrelease supervision.Defendant now appeals.
Defendant's initial contention for reversal is that the verdict is not supported bylegally sufficient evidence and is contrary to the weight of credible evidence in that theproof showed [*2]that she was acting only as the agent ofthe informant buyer. We are unpersuaded. "One who acts solely as the agent of the buyerin procuring drugs for the buyer is not, of course, guilty of selling the drugs to the buyer,but may be guilty of possession of the drugs" (People v Rotundo, 194 AD2d 943,944 [1993], lv denied 82 NY2d 726 [1993]; see People v Ortiz, 76 NY2d446, 448-449 [1990], amended 77 NY2d 821 [1990]; People v Lam LekChong, 45 NY2d 64, 73-74 [1978], cert denied 439 US 935 [1978]; People v Nealon, 36 AD3d1076, 1077 [2007], lv denied 8 NY3d 988 [2007]). "[W]hether thedefendant was a seller, or merely a purchaser doing a favor for a friend, is generally afactual question for the jury to resolve on the circumstances of the particular case"(People v Lam Lek Chong, 45 NY2d at 74; see People v Guthrie, 57 AD3d 1168, 1169 [2008], lvdenied 12 NY3d 816 [2009]).
Through the testimony of the police investigators[FN1] who testified to their roles in the informant's controlled buys and their observations fromoutside and inside the restaurant, the People proved that defendant knowingly sold morethan four ounces of marihuana in July 2010 and more than 25 grams of marihuana inApril and May 2010 (see Penal Law §§ 221.50, 221.45). Aninvestigator searched the informant and his vehicle before each purchase, providedprerecorded buy money (between $350 and $360) and a transmitter that the informant putin his pocket; the investigator followed the informant to the restaurant and observed himenter and then come out a few minutes later carrying a paper bag containing a ziplocbaggie of marihuana, which the informant turned over to the police shortly thereafter atan agreed-upon meeting place, where the informant was again searched. The investigatortestified that the informant called defendant before the April and May sales but not priorto arriving, unannounced, for the July sale. A second investigator, who went ahead andwas eating inside the restaurant, observed the May and July transactions; he testified thatthe informant entered the restaurant and spoke to defendant, who was behind the counterand handed the informant a bag. The May sale was recorded on an audio visual deviceand played for the jury. Defendant testified, admitting that she had known the informantfor five or six years and that she knowingly provided marihuana to him. She claimed,however, that she procured the marihuana from a regular customer, known as "Pat," atthe informant's request, because the informant was unemployed and desperate for moneyto pay his bills. She asserted that Pat provided the marihuana to her up front withoutpayment and that, after the transfer of the drugs to the informant, she gave Pat all of themoney that the informant had given her, making no profit from the transactions.
Viewing the evidence in a light most favorable to the People and according them thebenefit of every reasonable inference, we find that there was legally sufficient evidenceto support the jury's finding that defendant did not simply act as the agent of theinformant-buyer and its rejection of her proffered agency defense (see People vBleakley, 69 NY2d 490, 495 [1987]; People v Contes, 60 NY2d 620, 621[1983]; People v Guthrie, 57 AD3d at 1169). Defendant's statement to policeafter her arrest supported the conclusion that she had a supplier and made a profit on thetransactions. In addition, the testimony that the July sale two months after the May saledid not involve a call-ahead to defendant supports the conclusion that she already haddrugs on hand to sell. "Defendant's ability to supply a fairly substantial quantity ofmarihuana without a cash advance, but in a direct exchange of cash for drugs, alsosupports the [*3]inference that [s]he was acting as anentrepreneur rather than as the informant's agent" (People v Rotundo, 194 AD2dat 944 [citations omitted]).
Moreover, exercising our factual review power and according deference to the jury'scredibility determinations, we find that the evidence disproved the agency defensebeyond a reasonable doubt and the verdict was not contrary to the weight of the evidence(see People v Bleakley, 69 NY2d at 495; People v Johnson, 91 AD3d 1115, 1116-1117 [2012],lv denied 18 NY3d 959 [2012]; People v Nealon, 36 AD3d at 1078;People v Sheppard, 273 AD2d 498 [2000], lv denied 95 NY2d 908[2000]). The defense emphasized the informant's criminal history and incentive tocooperate and implicate her in this case, the omission of any cell phone records,defendant's lack of criminal history, and the absence of the informant's firsthand accountof what transpired during the transactions. Defendant testified that she suppliedmarihuana to the informant from Pat, despite the fact that they knew one another, andtestified that Pat was aware she was giving the drugs to the informant, all of which wasnot particularly believable. We cannot say that the verdict was contrary to the weight ofthe credible evidence.
Next, we are not persuaded that Supreme Court erred in allowing limitedMolineux evidence or that the People violated that Molineux ruling.While the court initially denied the People's proffer to admit certain uncharged crimes orbad acts evidence, when defendant put forth an agency defense and testified that thesethree transactions, in which she claimed to have acted as the agent of the informant, werethe only times she had handled marihuana and she made no profit on them, she "open[ed]the door to Molineux evidence" (People v Nealon, 36 AD3d at 1078;see People v Ortiz, 259 AD2d 979, 980 [1999], lv denied 93 NY2d 1024[1999]). It was not error for the court to permit the investigator to testify, on rebuttal,regarding defendant's statements about her suppliers, made after these sales, and howmuch she paid for marihuana per pound and sold per week. This testimony reflectedupon defendant's intent, motive and the absence of mistake during these transactions, andthat she profited from drug dealing. Although a contemporaneous limiting instructionshould ordinarily be provided, defense counsel did not request one and the court properlyinstructed the jury during its final charge (see People v Burkett, 101 AD3d 1468, 1471 n 3 [2012],lv denied 20 NY3d 1096 [2013]; People v Nash, 87 AD3d 757, 759 [2011], lvdenied 17 NY3d 954 [2011]; cf. People v Buchanan, 95 AD3d 1433, 1436-1437[2012]).[FN2]
Finally, we have reviewed defendant's remaining claims, including those regardingthe prosecutor's summation, and do not find that the prosecutor engaged in a "flagrantand pervasive pattern of prosecutorial misconduct" so as to deprive her of a fair trial(People v Demming, 116 AD2d 886, 887 [1986], lv denied 67 NY2d 941[1986]) or committed any error requiring [*4]correctiveaction.
Rose, J.P., Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The informant wasprecluded from testifying at trial because the People had failed to respond to thedefense's discovery demand for disclosure of the full terms of the cooperation agreementwith the informant.
Footnote 2: We also note thatSupreme Court should have made a ruling, on the record and outside the presence of thejury, that defendant had opened the door to this testimony, and explicitly balanced theprobative value of the evidence against its potential prejudice, before allowing theinvestigator to so testify (seePeople v Small, 12 NY3d 732, 733 [2009]; People v Dorm, 12 NY3d 16, 19 [2009]; People vVentimiglia, 52 NY2d 350, 359-362 [1981]). Upon our independent review, we findthat the probative value outweighed the prejudicial effect and, thus, there was no abuseof discretion in allowing this testimony.