| People v Kramer |
| 2014 NY Slip Op 04085 [118 AD3d 1040] |
| June 5, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Sean Kramer, Appellant. |
Brennan & White, LLP, Queensbury (Joseph R. Brennan of counsel), forappellant.
J. Anthony Jordan, District Attorney, Fort Edward (Devin J. Anderson of counsel),for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered January 18, 2013, upon a verdict convicting defendant of thecrimes of criminal sale of a controlled substance in the third degree and criminalpossession of a controlled substance in the third degree.
Defendant was indicted and charged with two counts of criminal sale of a controlledsubstance in the third degree and two counts of criminal possession of a controlledsubstance in the third degree. The charges stemmed from two controlled drug buys thatoccurred on January 24, 2012 and January 27, 2012 in the Village of Whitehall,Washington County. On each occasion, defendant provided four bags of heroin to acoworker, who was acting as a confidential informant (hereinafter CI) for a local lawenforcement agency, in exchange for $120. At trial, defendant readily admitted that heprocured heroin for the CI, but contended that he acted solely as the CI's agent for thesubject transactions. Defendant also raised the affirmative defense of entrapment.
Following the close of proof, and in response to defendant's motion for a trial orderof dismissal, County Court dismissed counts 3 and 4 of the indictment (relating to theJan. 27, 2012 transaction) and submitted the remaining counts (pertaining to the Jan. 24,2012 transaction) to the jury. The jury thereafter returned a verdict finding defendant notguilty of criminal sale of a controlled substance in the third degree and guilty of criminalpossession of a [*2]controlled substance in the thirddegree. Defendant moved to set aside the verdict as repugnant, and CountyCourt—instead of ruling upon the motion—adjourned for the day, advisingthe jurors that they may have to resume deliberations and instructing them to return thefollowing day. After reviewing counsels' written submissions the next morning, CountyCourt informed the jury that it was not accepting the verdict and, after providing aspecial verdict sheet, instructed the jury to resume deliberations. Following furtherdeliberations, the jury found defendant guilty of both the sale and the possession count,and defendant's subsequent motion to set aside the verdict was denied. Defendantthereafter was sentenced to concurrent prison terms of four years followed by two yearsof postrelease supervision. This appeal by defendant ensued.[FN1]
Defendant initially contends that the verdict is not supported by legally sufficientevidence—an argument premised upon defendant's assertion that he was actingsolely as an agent of the CI. Under the agency doctrine, "a person who acts solely as theagent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to thebuyer, or of possessing it with intent to sell it to the buyer" (People v Watson, 20 NY3d182, 185 [2012] [internal quotation marks and citation omitted]; see People v Monykuc, 97AD3d 900, 901 [2012]; People v Mosby, 78 AD3d 1371, 1373 [2010], lvdenied 16 NY3d 834 [2011]). "[W]hether the defendant was a seller, or merely apurchaser doing a favor for a friend, is generally a factual question for the jury to resolveon the circumstances of the particular case" (People v Mitchell, 112 AD3d 1071, 1071-1072 [2013],lv denied 22 NY3d 1140 [2014] [internal quotation marks and citation omitted];accord People v Guthrie, 57AD3d 1168, 1169 [2008], lv denied 12 NY3d 816 [2009])—adetermination based upon factors such as "the relationship between the buyer and thedefendant, who initiated the transaction, whether the defendant had previously engagedin drug transfers and whether he or she profited from the sale" (People vMonykuc, 97 AD3d at 902).
Viewing the evidence in the light most favorable to the People, we find that therewas legally sufficient evidence to support the jury's rejection of the proffered agencydefense. The CI acknowledged that he spoke to defendant about purchasing heroin fromhim "[p]robably four or five times" prior to the January 24, 2012 transaction and testifiedthat defendant also procured a quantity of prescription pain medication for him[FN2] prior to that date.Although defendant testified that he initially refused to acquire heroin for the CI andagreed to do so only after repeated inquiries, defendant's testimony on this pointpresented a credibility issue for the jury to resolve and, on balance, there was sufficienttestimony from which the jury could infer that defendant, in providing the heroin, wasnot merely doing a favor for a friend. Additionally, both the CI and a law enforcementofficial testified that, in the surrounding community, $120 typically would buy one"bundle" or 10 bags of heroin. Although defendant testified that the going rate for heroinwas $30 per bag and that he, in turn, paid $240 ($120 from the CI, $120 of his ownfunds) for eight bags of heroin (four for the CI, four for him), the jury could haveinferred from this conflicting testimony that defendant either used the CI's money topurchase heroin for his personal use or otherwise profited or benefitted from the January24, 2012 transaction—conduct that would be inconsistent with the claimed agencydefense. As defendant otherwise readily admitted the elements of the charged crimes, wefind that there is legally sufficient evidence to support the underlyingconvictions.
[*3] That said, we nonethelessfind that County Court erred in refusing to accept the jury's initial verdict and inthereafter instructing the jury to resume deliberations. Contrary to defendant's assertion,the jury's initial verdict—convicting him of criminal possession of a controlledsubstance in the third degree and acquitting him of criminal sale of a controlledsubstance in the third degree—was not repugnant. "[A] verdict as to a particularcount shall be set aside [as repugnant] only when it is inherently inconsistent whenviewed in light of the elements of each crime as charged to the jury" (People vTucker, 55 NY2d 1, 4 [1981]; accord People v Muhammad, 17 NY3d 532, 539 [2011]).In assessing a repugnancy claim, "we must review the elements of the offenses ascharged to the jury without regard to the proof that was actually presented at trial. Thus,[i]f there is a possible theory under which a split verdict could be legally permissible, itcannot be repugnant, regardless of whether that theory has evidentiary support. . . . In this context, the apparently illogical nature of the verdict—asopposed to its impossibility—is viewed as a mistake, compromise or the exerciseof mercy by the jury, none of which undermine[s] a verdict as a matter of law" (People v Reichel, 110 AD3d1356, 1365 [2013], lv denied 22 NY3d 1090 [2014] [internal quotationmarks and citations omitted]; see People v Muhammad, 17 NY3d at539-540).
Here, upon reviewing the elements of the subject offenses, it is readily apparent thatthe jury's verdict was not repugnant. Criminal sale of a controlled substance in the thirddegree requires proof that the defendant knowingly and unlawfully sold a narcotic drug(see Penal Law § 220.39 [1]), whereas criminal possession of acontrolled substance in the third degree requires only, insofar as is relevant here, that thedefendant knowingly and unlawfully possessed a narcotic drug with intent to sellit (see Penal Law § 220.16 [1]). Notably, a "[d]efendant'sacquittal on the [sale count] does not negate the elements of the [possession count], for aperson can possess and intend to sell a narcotic drug, but not actually accomplish a sale"(People v Mendoza, 300 AD2d 824, 824-825 [2002], lv denied 99 NY2d617 [2003]; see People v Lane, 177 AD2d 713, 713 [1991], lv denied 79NY2d 921 [1992]). Defendant's argument to the contrary is predicated upon the specificproof adduced at trial, which—the Court of Appeals has instructed—is toplay no role in our analysis of a repugnancy claim (see People v Muhammad, 17NY3d at 539; People v Tucker, 55 NY2d at 6-7). As the jury's initial verdict wasnot repugnant, County Court should have denied defendant's motion, accepted the jury'sverdict and adjourned the matter for sentencing. Instead, County Court implicitly granteddefendant's motion, devised a special verdict sheet and directed the jury to resumedeliberations.
Pursuant to CPL 310.50 (2), "[i]f the jury renders a verdict which in form is not inaccordance with the court's instructions or which is otherwise legally defective, the courtmust explain the defect or error and must direct the jury to reconsider such verdict, toresume its deliberation for such purpose, and to render a proper verdict." Here, however,the jury's initial verdict was neither repugnant, erroneous nor otherwise legally defectiveand, therefore, there was no legal basis upon which to direct the jury to resumedeliberations (cf. People vHarris, 50 AD3d 1387, 1388-1390 [2008]). Although defendant did not objectto County Court's decision to resubmit both the possession count and the sale count tothe jury with a special verdict sheet, given the nature of the error, we deem this to be anappropriate instance in which to take corrective action in the interest of justice(see CPL 470.15 [6] [a]). Accordingly, defendant's conviction of criminal sale ofa controlled substance in the third degree under count 1 of the indictment is vacated.Defendant's remaining contentions, to the extent not specifically addressed, have beenexamined and found to be lacking in merit.
Stein, J.P., McCarthy and Rose, JJ., concur. Ordered that the judgment is modified,as a matter of discretion in the interest of justice, by reversing defendant's conviction ofcriminal sale of a controlled substance in the third degree under count 1 of theindictment; said count dismissed, the sentence imposed thereon vacated, and matterremitted to the County Court of Washington County for further proceedings pursuant toCPL 460.50 (5); and, as so modified, affirmed.
Footnote 1:Defendant's subsequentapplication for bail pending appeal was granted by this Court.
Footnote 2:The record containsconflicting proof as to who—the CI or defendant—initiated this transaction.