| People v Robinson |
| 2014 NY Slip Op 08672 [123 AD3d 1224] |
| December 11, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTerrance D. Robinson, Also Known as Z, Appellant. |
Alexander W. Bloomstein, Hillsdale, for appellant.
Paul Czajka, District Attorney (James A. Carlucci of counsel), for respondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of Columbia County(Nichols, J.), rendered April 20, 2011, convicting defendant following a nonjury trial ofthe crime of criminal sale of a controlled substance in the third degree (two counts), (2)from a judgment of said court, rendered September 4, 2012, which resentenced defendantfollowing said conviction, and (3) by permission, from an order of said court, enteredApril 23, 2013, which denied defendant's motion pursuant to CPL 440.20 to set aside hissentence, without a hearing.
Defendant was indicted and charged with two counts of criminal sale of a controlledsubstance in the third degree. The charges stemmed from defendant's sale of crackcocaine to an undercover Columbia County sheriff's deputy in April 2009 and May 2009.Following a nonjury trial, at which defendant testified in support of his agency defense,defendant was convicted as charged and was sentenced, as a second violent felonyoffender, to an aggregate prison term of 16 years followed by three years of postreleasesupervision. When the Court of Appeals reversed the conviction that formed the basis fordefendant's predicate felony (People v Robinson, 17 NY3d 868 [2011]),defendant moved to be resentenced pursuant to CPL 440.20; County Court granteddefendant's application and resentenced him to an aggregate prison term of eight yearsfollowed by two years of postrelease supervision. In response, defendant again soughtresentencing, claiming that he was entitled to an updated presentence report pursuant toCPL [*2]390.20. County Court denied defendant'smotion and these appeals ensued.
We affirm. To the extent that defendant contends that the underlying conviction isnot supported by legally sufficient evidence, we note that defendant's generalized motionto dismiss at the close of the People's case was insufficient to preserve his present claim,i.e., that the People failed to disprove his agency defense beyond a reasonable doubt (see People v Greenfield, 112AD3d 1226, 1226 [2013], lv denied 23 NY3d 1037 [2014]; People v Simmons, 103 AD3d1027, 1029 [2013], lv denied 21 NY3d 1009 [2013]). Additionally,defendant, who testified upon his own behalf, failed to renew this motion at the close ofall proof; accordingly, defendant's challenge to the legal sufficiency of the evidence isnot preserved for our review (see People v Fisher, 89 AD3d 1135, 1136 [2011], lvdenied 18 NY3d 883 [2012]; People v Race, 78 AD3d 1217, 1219 [2010], lvdenied 16 NY3d 835 [2011]). "That said, our weight of the evidence [analysis]necessarily involves an evaluation of whether all elements of the charged crime[s] wereproven beyond a reasonable doubt at trial" (People v Menegan, 107 AD3d 1166, 1169 [2013] [internalquotation marks and citations omitted]; see People v Ramirez, 118 AD3d 1108, 1110 [2014]).
Insofar as is relevant here, "[a] person is guilty of criminal sale of a controlledsubstance in the third degree when he [or she] knowingly and unlawfully sells. . . a narcotic drug" (Penal Law § 220.39 [1]). Defendant doesnot dispute that he sold a narcotic drug, i.e., cocaine, to the undercover deputy on thedates in question, but contends that he acted solely as the deputy's agent in this regardand, at best, is guilty of criminal possession of a controlled substance (see People vLam Lek Chong, 45 NY2d 64, 74 [1978], cert denied 439 US 935 [1978]; People v Mitchell, 112 AD3d1071, 1071 [2013], lv denied 22 NY3d 1140 [2014]). Under the agencydoctrine, a person who procures drugs solely as the agent of a buyer is not guilty of eithercriminal sale or of possession with the intent to sell (see People v Kramer, 118 AD3d 1040, 1041 [2014])."[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, isgenerally a factual question for the [factfinder] to resolve on the circumstances of theparticular case" (id. at 1041 [internal quotation marks and citation omitted];accord People v Mitchell, 112 AD3d at 1071-1072; see People v Monykuc, 97AD3d 900, 902 [2012]; People v Johnson, 91 AD3d 1115, 1117 [2012], lvdenied 18 NY3d 959 [2012]). Such a determination, in turn, may hinge upon anumber of factors, including "the nature and extent of the relationship between thedefendant and the buyer, whether it was the buyer or the defendant who suggested thepurchase, whether the defendant has had other drug dealings with this or other buyers orsellers and, of course, whether the defendant profited, or stood to profit, from thetransaction" (People v Lam Lek Chong, 45 NY2d at 75; see People vKramer, 118 AD3d at 1042; People v Monykuc, 97 AD3d at 902). Notably,profit does not necessarily equate with pecuniary gain; indeed, this Court has recognizedthat a defendant may stand to benefit from the underlying sale when such transaction wasundertaken in the hopes of receiving either assistance in getting a job (see People v Jones, 77 AD3d1170, 1172 [2010], lv denied 16 NY3d 896 [2011]) or sex (see People vJohnson, 91 AD3d at 1117) in exchange for obtaining the requested drugs.
Here, the undercover deputy testified that she was introduced to defendant by aconfidential informant; defendant provided the deputy with his phone number and toldher to call him Z. Thereafter, on April 21, 2009 and May 21, 2009, the deputy contacteddefendant at the number previously provided, told him that she needed a specific dollaramount of drugs and met with defendant at the agreed-upon locations, at which timedefendant provided her with a substance that subsequently tested positive for cocaine.According to the deputy, at no time did defendant indicate either that he would need toprocure the drugs from someone else or that he was doing so merely as a favor to her.Although defendant admitted that he sold drugs to the deputy on the days in question, hecontended that he obtained the drugs from other people and [*3]did so only as a favor to the deputy, stating, "I don't dealwith that." Defendant further testified that he did not profit from the transactions andacquiesced to the deputy's request because he "was attracted to her" and "was trying toget to know her" as a "friend." On cross-examination, defendant offered inconsistenttestimony as to whether he had engaged in drug sales prior to April 21, 2009, promptingthe People to recall the deputy, who testified on rebuttal that she witnessed defendant selldrugs to a confidential informant on two occasions before that date.[FN1]
Although the deputy and defendant provided conflicting accounts of the subjecttransactions, this presented a credibility issue for County Court to resolve (see Peoplev Kramer, 118 AD3d at 1042). Accordingly, while a different result would not havebeen unreasonable, viewing the evidence in a neutral light and deferring to CountyCourt's credibility determinations, we do not find defendant's conviction to be against theweight of the evidence (see People v Johnson, 91 AD3d at 1117). Defendant'srelated challenge in this regard—namely, that the People failed to establish that thesubstance he sold was in fact cocaine—is unpreserved for our review (seeid. at 1115) and, in any event, is lacking in merit.
Defendant's remaining arguments are equally unavailing. With respect to CountyCourt's suppression rulings, we do not find the subject photo array to be undulysuggestive (see People vPendelton, 90 AD3d 1234, 1236-1237 [2011], lv denied 18 NY3d 996[2012]; People v Deshields,24 AD3d 1112, 1112-1113 [2005], lv denied 6 NY3d 811 [2006]), nor arewe persuaded that the identification procedures employed therein violated due process.In any event, identification ultimately was not an issue, as defendant readily admitted hisparticipation in the subject transactions. Similarly, with regard to County Court'sSandoval ruling, we are satisfied that the prior conviction "reflected defendant'swillingness to place his interests above those of society" and that County Court, in turn,properly balanced the probative value of the conviction against its prejudicial effect (People v Alnutt, 101 AD3d1461, 1464 [2012], lv denied 21 NY3d 941 [2013], cert denied 571US &mdash, 134 S Ct 1035 [2014]).[FN2] To the extent that defendant challengesCounty Court's sua sponte questioning of certain witnesses, we note that defendant failedto lodge any objection in this regard and, therefore, this issue is unpreserved for ourreview (cf. People vRobinson, 121 AD3d 1179, 1180 [2014]). In any event, County Court clearly "ispermitted to raise matters on its own initiative in order to elicit significant facts, clarify orenlighten an issue or to facilitate the orderly and expeditious progress of the trial" (People v Lupo, 92 AD3d1136, 1138 [2012] [internal quotation marks and citation omitted]).
We also find no merit to defendant's claim that he was denied the effective assistanceof [*4]counsel. "So long as the evidence, the law, and thecircumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation, theconstitutional requirement will have been met" (People v Bush, 107 AD3d 1302, 1302 [2013] [internalquotation marks and citations omitted]; accord People v Shuaib, 111 AD3d 1055, 1057 [2013]).Here, the record reflects that defense counsel made appropriate objections, effectivelycross-examined the People's witnesses, challenged the chain of custody, advanced aplausible defense and articulated a cogent closing statement. Accordingly, we aresatisfied that defendant received meaningful representation (see People v Kenyon, 108AD3d 933, 940 [2013], lv denied 21 NY3d 1075 [2013]).
As for defendant's various sentencing challenges, we reject defendant's assertion thatthe sentence imposed was harsh and excessive. Further, we find no merit to defendant'sclaim that County Court erred in resentencing him without first obtaining an updatedpresentence report and/or in denying his subsequent motion to be resentenced upon thisground. Initially, defendant raised no objection in this regard at the time of hisresentencing in September 2012 and, to that extent, cannot now be heard to complain. Inany event, and more specifically with regard to the denial of defendant's subsequentmotion, "[w]hether to obtain an updated presentence report is a matter resting within thediscretion of the sentencing court" (People v Williams, 114 AD3d 993, 994 [2014], lvdenied 23 NY3d 969 [2014] [internal quotation marks and citations omitted]). Here,defendant had been continuously incarcerated since the imposition of the originalsentence, defendant was afforded an opportunity to address the court at resentencing andCounty Court, having presided over defendant's trial, was well aware of the issuesunderlying the resentencing and defendant's intervening history. Under thesecircumstances, we discern no abuse of County Court's discretion in resentencingdefendant without first obtaining an updated presentence report (see id. at 994;People v Lakatosz, 89AD3d 1329, 1330 [2011], lv denied 18 NY3d 925 [2012]) or in denying hissubsequent motion with respect thereto. Defendant's remaining contentions, to the extentnot specifically addressed, have been examined and found to be lacking in merit.
McCarthy, J.P., Lynch, Devine and Clark, JJ., concur. Ordered that the judgmentsand order are affirmed.
Footnote 1:Inasmuch as defendantaffirmatively denied that he ever sold drugs prior to April 21, 2009, the proffered rebuttaltestimony—to which defense counsel objected—was entirely proper(see People v Alvino, 71 NY2d 233, 247 [1987]).
Footnote 2:Although the priorconviction subsequently was reversed by the Court of Appeals (People vRobinson, 17 NY3d 868 [2011], supra), County Court's Sandovalruling nonetheless was proper at the time that it was made. In any event, by virtue of its"learning, experience and judicial discipline," County Court was more than "capable. . . of making an objective determination based upon appropriate legalcriteria" (People v Green,84 AD3d 1499, 1500 [2011], lv denied 17 NY3d 953 [2011] [internalquotation marks and citations omitted]).