| People v Vickers |
| 2019 NY Slip Op 00496 [168 AD3d 1268] |
| January 24, 2019 |
| Appellate Division, Third Department |
[*1](January 24, 2019)
| The People of the State of New York,Respondent, v Robert Vickers, Also Known as Rashad Abdur-Rahman,Appellant. |
George J. Hoffman Jr., East Greenbush, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered January 7, 2016, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree (six counts).
Following a seven-month investigation beginning in the summer of 2013 and ending inMarch 2014, as relevant here, defendant was charged in three indictments, later consolidated,with six counts of criminal sale of a controlled substance in the third degree.[FN1] The charges stem fromdefendant's sale of heroin between September 2013 and January 2014 to a detective with the Cityof Albany Police Department (hereinafter APD) who, working as an undercover officer, made 11controlled purchases of heroin from defendant. The transactions were captured on recordingequipment and occurred under surveillance by numerous law enforcement officers. Theundercover officer had received defendant's cell phone number from a confidential informant(hereinafter CI) who was working with the APD on the investigation into defendant's narcoticsactivities; according to the officer, the CI was not present at any of the drug sales. The CI wasalso simultaneously working on an investigation being conducted by members of the New YorkCity Police Department (hereinafter NYPD), among other agencies, with assistance from theAPD, into an unsolved 1972 murder of two police officers for which defendant was asuspect.[FN2]
At trial, defendant admitted providing the heroin to the undercover officer, but advanced anagency defense and asserted that he had been entrapped by police because he was suspected ofbeing involved in the police murders. The jury convicted defendant of all six counts. Followinghis unsuccessful motion to set aside the verdict, County Court imposed on each conviction aseven-year sentence, followed by two years of postrelease supervision, and ordered that thesentences on the first three counts were to be served consecutively for an aggregate sentence of21 years, and that the sentences on the remaining three counts were to be served concurrently.Defendant appeals.[FN3]
We affirm. Defendant challenges the legal sufficiency of the evidence and also contends thatthe verdict was contrary to the weight of the evidence. Specifically, he argues that the Peoplefailed to prove that he did not act as an agent for the buyer, and that the jury should haveconcluded that he had been induced by police to commit the drug sales and, therefore, that he hadbeen entrapped. Initially, although defendant moved for a trial order of dismissal, he only arguedthat the affirmative defense of entrapment had been established. As defendant did not raise thearguments now advanced regarding his agency defense, his challenge to the legal sufficiency ofthe evidence that he did not act as the buyer's agent is not preserved for our review (see People v Hawkins, 11 NY3d484, 492-493 [2008]; People vRoulhac, 166 AD3d 1066, 1067 [2018], lv denied 32 NY3d 1128 [2018]). "Wewill nevertheless evaluate whether the elements of the charged crimes were proven beyond areasonable doubt upon our weight of the evidence review" (People v Cruz, 152 AD3d 822, 823 [2017], lv denied 30NY3d 1018 [2017]; see People vScippio, 144 AD3d 1184, 1185 [2016], lv denied 28 NY3d 1150 [2017]).
The People were required to prove that defendant knowingly and unlawfully sold a narcoticdrug, heroin (see Penal Law §§ 15.05 [2]; 220.39 [1]) and, asdefendant asserted an agency defense, the People were also required to prove that he had notacted "solely as the agent of a buyer" (People v Watson, 20 NY3d 182, 185 [2012] [internal quotationmarks and citation omitted]; see Peoplev Valentin, 29 NY3d 150, 155 [2017]). Defendant admitted at trial that he providedheroin to the undercover officer, but argued that he had acted as an agent of the officer, the buyer,in procuring heroin for him and that his transfer of drugs was not done with intent to sell heroin(see Penal Law §§ 220.00 [1]; 220.39). "Under the agency doctrine, aperson who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty ofselling the drug to the buyer, or of possessing it with intent to sell it to the buyer[,]. . . [which] is generally a factual question for the jury to resolve on thecircumstances of the particular case" (People v Peterkin, 135 AD3d 1192, 1192 [2016] [internal quotationmarks and citations omitted]; see People v Lam Lek Chong, 45 NY2d 64, 73 [1978],cert denied 439 US 935 [1978]; People v Jones, 77 AD3d 1170, 1172 [2010], lv denied 16NY3d 896 [2011]). An agency defense is "not a complete defense[,]" but, instead, "permit[s] thejury to find [a] defendant [to be] an agent of the buyer, rather than [an agent of the] seller, andtreat him [or her] accordingly" (People vDavis, 14 NY3d 20, 24 [2009]; see People v Vickers, 156 AD3d 1236, 1237 [2017], lvdenied 31 NY3d 988 [2018]). Assertion of this defense requires the jury to consider severalfactors, including "the nature and extent of the relationship between the defendant and the buyer,whether it was the buyer or the defendant who suggested the purchase, whether the defendant hashad other drug dealings with this or other buyers or sellers and, of course, whether the defendantprofited, or stood to profit, from the transaction" (People v Lam Lek Chong, 45 NY2d at75; accord People v Watson, 20 NY3d at 186; People v Vickers, 156 AD3d at1237; People v Peterkin, 135 AD3d at 1192).
We are not persuaded that the jury's rejection of the agency defense was against the weight ofthe evidence. The trial testimony established that, after APD officers obtained information fromseveral sources that defendant was selling drugs, they arranged for the CI to make contact anddevelop a relationship with defendant under the ruse that they were cousins. The CI befriendeddefendant and suggested that if he helped the CI expand his drug business in Saratoga Countywhere defendant resided, the CI would help defendant expand his heroin business in AlbanyCounty. The CI introduced defendant to a heroin supplier, from whom defendant thereafterobtained some of the heroin he sold, although defendant's conversations with the CI reflected thatdefendant had ready access to other suppliers. The CI referred the undercover officer todefendant, representing that the officer was his brother-in-law and telling defendant that theofficer was a heroin user and potential customer. It was undisputed that defendant did notpreviously know the officer or have any relationship with him aside from these drug sales. To cutthe CI out of the picture, the officer asked defendant not to tell the CI about their drugtransactions. After that introduction, the officer communicated directly with defendant to arrangethe heroin transactions, calling defendant's cell phone or home phone and, likewise, defendantoften called the officer directly on his cell phone to arrange sales. The CI was not involved orpresent when defendant met up with the officer to take his order for heroin and collect the cash orwhen defendant returned to supply the requested heroin to the officer. The officer testified thatdefendant was not supplying the officer with heroin as a favor, and that defendant never claimedto be doing so. While the officer called defendant to set up the first controlled buy, defendantthereafter often called the officer to advise him that he had heroin, quoting a price, and initiated 5of the 11 sales. The testimony and recorded calls reflect that defendant engaged in "salesman-likebehavior" touting the price and quality of the heroin, and defendant usually required the officer toprovide gas money when he delivered the heroin (see People v Jones, 77 AD3d at1172).
The testimony, including defendant's own account, established that he benefitted and profitedfrom the transactions with the officer. To that end, defendant collected enough money from theofficer to enable his purchase of the requested quantity of heroin for the officer, leaving extramoney to purchase heroin for himself and the friend who drove him to the transactions. Indeed,defendant is heard on one video recording discussing his profits, explaining that his practice wasto sell heroin for a set price that was more than the price he paid to purchase it from his suppliers.The trial testimony also contained several accounts that defendant had previously andcontemporaneously sold heroin to other buyers, including one recorded phone call in whichdefendant took an order for 15 bags of heroin from another buyer (see People v Valentin,29 NY3d at 156). A long-term friend of defendant testified that she had purchased heroin fromdefendant several times per week beginning in the mid-1990s until 2001, and then resumedbuying heroin from him on a weekly basis in 2012 up until defendant's March 2014 arrest; shetestified that defendant also sold drugs to her sister, her cousin, friends and other addicts. Aformer City of Saratoga Springs police investigator testified that a CI had engaged in a controlledbuy of narcotics from defendant in 2001, which was not prosecuted because the CI went toprison.
Defendant testified, in contrast, that he was providing heroin to the undercover officer as afavor to him, and that he did so because the CI had represented that the officer was a sick addictwho was being harassed by other dealers. Defendant claimed that the CI constantly spoke to himabout taking care of the officer's heroin needs. Defendant's account that, despite his own heroinhabit and financial circumstances, he repeatedly drove from Saratoga County to Albany County,and then to suppliers, to provide the officer with heroin as a favor to the officer was notbelievable, particularly given that defendant had no prior relationship with the officer and theyhad no contact aside from the heroin transactions.
Moreover, defendant admitted that he used some of the money provided by the undercoverofficer to purchase heroin for himself, or pooled his money with the officer's buy money to get adiscount and purchase a larger quantity of heroin so he could keep some for himself. Notably,profit need not be pecuniary and includes transactions in which a defendant "stand[s] to benefitfrom the underlying sale" in other ways, including getting cheaper or free drugs for himself orherself and for friends (People vRobinson, 123 AD3d 1224, 1226 [2014], lv denied 25 NY3d 992 [2015]). Thebenefits that defendant expected and received from these transactions further established that hedid not act "solely in the interests of" (People v Watson, 20 NY3d at 191) or "solely asthe agent of [the] buyer in procuring drugs for the buyer" (id. at 185 [internal quotationmarks and citation omitted]). "To the extent that defendant offered a different version of certainevents and alternate interpretations of the evidence presented, we defer to the jury's credibilitydeterminations, given its opportunity to hear the testimony and observe the witnesses' demeanor"(People v Jones, 77 AD3d at 1172 [citation omitted]). We note that much of defendant'stestimony suggested that he provided heroin to the officer as a favor to the CI, becausethe CI was giving him cheap or free heroin for his own use as well as cash, and that the CIprovided heroin for four or five of the sales to the officer and took the buy money. This account,if credited, would establish that defendant was acting as the agent of the seller, whichdoes not support an agency defense (see People v Argibay, 45 NY2d 45, 50 [1978],cert denied sub nom. Hahn-DiGuiseppe v New York, 439 US 930 [1978]; People vJones, 180 AD2d 650, 651 [1992]). Moreover, defendant's claim that the CI supplied theheroin and took the sale proceeds was not supported by any other testimony and was contradictedby the officer's testimony that police followed defendant when he left to get heroin for the officer,and that defendant did not meet up with the CI to obtain the heroin.
In the end, the jury rejected defendant's agency defense after resolving credibility issuespresented by the conflicting testimony. Evaluating the evidence in a neutrallight—including evidence of defendant's other drug selling, his profits from thetransactions, that his relationship with the officer was limited to drug transactions, his course ofconduct during the recorded transactions and the recorded conversations reflecting defendant'ssalesman-like behavior—we do not find that the jury's factual finding that defendant wasnot merely doing a friend a favor, and its rejection of the agency defense, was against the weightof the credible evidence (see People v Vickers, 156 AD3d at 1237; People vPeterkin, 135 AD3d at 1192-1193; People v Vanguilder, 130 AD3d 1247, 1249-1250 [2015], lvdenied 27 NY3d 1008 [2016]; People v Johnson, 91 AD3d 1115, 1117 [2012], lv denied18 NY3d 959 [2012]).
Nor are we persuaded that defendant proved the affirmative defense of entrapment by apreponderance of the evidence (see Penal Law §§ 25.00 [2]; 40.05).Specifically, defendant was required to prove that "(1) he was actively induced or encouraged tocommit the offense by a public official; and (2) such inducement or encouragement created a'substantial risk' that the offense would be committed by defendant who was not otherwisedisposed to commit it" (People v Brown, 82 NY2d 869, 871 [1993], quoting Penal Law§ 40.05; accord People v Jones, 77 AD3d at 1172; see People v Figueroa, 167 AD3d1073, 1074 [2018]). "Whether a defendant is predisposed to commit an offense or wasinduced to commit the offense is a question of fact" (People v McGee, 49 NY2d 48, 61[1979] [citations omitted]; accord People v Jones, 77 AD3d at 1172). In arguing that hewas entrapped, defendant points to the CI befriending him as a long-lost cousin, giving him cashand cheap or free heroin to feed his addiction, providing him with a cell phone, connecting himwith a supplier and introducing him to the officer as an addicted relative to whom he could sellheroin. However, the testimony of numerous officers "demonstrates that they merely affordeddefendant an opportunity to commit the [drug sales]," and "[m]erely asking a defendant tocommit a crime is not such inducement or encouragement as to constitute entrapment"(People v Brown, 82 NY2d at 871-872; see People v Figueroa, 167 AD3d at1075; People v Jones, 77 AD3d at 1172; People v Delaney, 309 AD2d 968, 970[2003]).
Moreover, there was extensive testimony and ample evidence supporting the conclusion thatdefendant was predisposed to drug selling, in that he had been selling drugs for many years andwas doing so prior to meeting the CI. The video recordings established that he was already asophisticated and experienced drug seller before the police and the CI provided an opportunity tosell to the undercover officer (see People v Jones, 77 AD3d at 1172-1173; see alsoPeople v Calvano, 30 NY2d 199, 203-204 [1972]). The video recordings dispel the claimthat defendant was a drug addict acting out of desperation. The only proof that defendant was"actively induced or encouraged" by the CI to engage in drug sales or that the CI provided theheroin, rather than merely provided an opportunity to expand the geographic area of defendant'songoing drug dealing business, came from defendant, and the jury was entitled to reject hisaccount (People v Skervin, 17AD3d 771, 771-772 [2005] [internal quotation marks and citations omitted], lvdenied 5 NY3d 856 [2005]; seePeople v Velasquez, 77 AD3d 503, 503 [2010], lv denied 15 NY3d 956[2010]).
Viewing the evidence and testimony in the light most favorable to the People and affordingthem the benefit of every favorable inference, we find there was "a valid line of reasoning andpermissible inferences from which the finder of fact could have rationally concluded that theelements of the crime[s] were established beyond a reasonable doubt" (People v Kancharla, 23 NY3d 294,302 [2014]; see People v Delamota,18 NY3d 107, 113 [2011]; People vHaggray, 164 AD3d 1522, 1524 [2018], lv denied 32 NY3d 1111 [2018]).Further, deferring to the jurors' "opportunity to view the witnesses, hear the testimonyand observe demeanor" (People v Bleakley, 69 NY2d 490, 495 [1987]), we conclude that,while a different verdict would not have been unreasonable, upon weighing the conflictingtestimony and competing inferences, "the jury was justified in finding the defendant guiltybeyond a reasonable doubt" (People v Kancharla, 23 NY3d at 303 [internal quotationmarks and citation omitted]).
We are similarly not persuaded by defendant's contention that egregious police misconductwarrants a reversal of his convictions pursuant to People v Isaacson (44 NY2d 511[1978]). Defendant argues that police, frustrated with their inability to prosecute him for the 1972murders, manufactured a scenario to have him sell narcotics to an undercover officer using the CIto befriend him with a ruse, provided him with a cell phone, introduced him to a supplier andpromised him drugs to feed his addiction. He asserts that the CI pressured him to sell heroin tohis addicted relative. While police used a ruse in order to make controlled drug purchases andfacilitated defendant's drug selling, their actions did not constitute police misconduct or offendprinciples of due process (see id. at 520-522). Contrary to defendant's contentions, police,made aware that defendant was engaged in drug dealing, "merely involved themselves in[defendant's] ongoing criminal activity" and were not particularly persistent and did not engagein "criminal or improper conduct" (id. at 521). Further, defendant did not exhibitreluctance or unwillingness to engage in the drug sales and was not promised exorbitant gain,and there was no evidence to support the conclusion that the police motive was solely to obtain aconviction rather than "to prevent further crime" (id.). There was nothing improper aboutthe fact that the APD was assisted by NYPD officers in this investigation, or about the NYPDsimultaneously conducting a separate investigation of defendant and other suspects concerningthe murders. Accordingly, we find that defendant has not shown that his due process rights wereviolated by police actions (see id.; People v Kass, 59 AD3d 77, 82 [2008]; People v Spence, 39 AD3d 673,673-674 [2007], lv denied 9 NY3d 882 [2007]; People v Keyes, 193 AD2d 936,937 [1993], lv denied 82 NY2d 756 [1993]).
Finally, defendant argues that the sentence should be reduced in the interest of justice in viewof the fact that he was a 68-year-old heroin addict and that the sentence was influenced by thetestimony regarding the investigation into his role in the uncharged murders. However, CountyCourt imposed a sentence that was less than the maximum consecutive sentences permitted forthese separate drug sales (see Penal Law §§ 70.25 [2]; 70.70 [1], [2][a] [i]) and, in doing so, the court made clear that the sentence would be based solely on therecord regarding these drug sales and would not be influenced by the uncharged crimes. Thecourt took into account the mitigating factors, as well as defendant's ongoing drug dealing andcriminal history, which includes a prior prison escape. Although defendant points to the lowersentence that he received for his two prior drug sale convictions emanating from this sameinvestigation (People v Vickers, 156 AD3d at 1239), County Court was entitled to rely onthe trial record in this prosecution, including the recordings, which reflects the extent of dangerthat he poses to the community stemming from his drug dealing, his disregard for others and hiscriminal character. Our review of the record discloses neither "an abuse of discretion norextraordinary circumstances warranting a reduction of the sentence in the interest of justice" (People v Babcock, 152 AD3d 962,968 [2017], lv denied 30 NY3d 947 [2017]). Defendant's remaining claims have beenreviewed and found to be lacking in merit.
Clark, Devine and Rumsey, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:A seventh count contained in aFebruary 2015 indictment pertaining to the sale of heroin in March 2014 was dismissed prior totrial.
Footnote 2:The trial testimony establishedthat defendant had never been charged with those murders.
Footnote 3:This Court affirmed defendant'searlier conviction of two counts of criminal sale of a controlled substance in the third degreestemming from his sale of heroin on two other occasions during this investigation (People v Vickers, 156 AD3d 1236[2017], lv denied 31 NY3d 988 [2018]).