| People v Hunt |
| 2008 NY Slip Op 03255 [50 AD3d 1246] |
| April 11, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Harold A.Hunt, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered January 26, 2007, upon a verdict convicting defendant of the crimes of criminal sale ofa controlled substance in the third degree, criminal possession of a controlled substance in thethird degree and criminal possession of a controlled substance in the fourth degree.
Defendant was arrested for the sale of cocaine to a confidential informant. Thereafter,defendant was charged in a three-count indictment with the crimes of criminal sale of acontrolled substance in the third degree, criminal possession of a controlled substance in the thirddegree and criminal possession of a controlled substance in the fourth degree. Defendant soughtto have the defenses of entrapment and agency presented to the jury. County Court granteddefendant's request only to the extent of instructing the jury to consider the entrapment defensewith respect to counts one and two. The jury returned verdicts of guilty on all counts anddefendant was sentenced to an aggregate prison term of six years. Defendant now appeals.
Defendant did not demonstrate a prima facie showing of discrimination when he raised hisBatson objection. Defendant must show that " 'the prosecution exercised its peremptorychallenges to remove one or more members of a cognizable racial group from the venire and thatthere exist facts and other relevant circumstances sufficient to raise an inference that the [*2]prosecution used its peremptory challenges to exclude potentialjurors because of their race' " (People v Jenkins, 84 NY2d 1001, 1002 [1994], quotingPeople v Childress, 81 NY2d 263, 266 [1993]; see People v Williams, 306 AD2d691 [2003], lv denied 1 NY3d 582 [2003]). "It is not until that prima facie showing hasbeen made that the burden shifts to the prosecution to come forward with a race-neutralexplanation for its peremptory challenges" (People v Jenkins, 84 NY2d at 1002-1003[citation omitted]).
Here, defendant's Batson challenge was based solely on the prosecution's use of aperemptory challenge to remove the only African American from the jury pool. Defendant raisedno other facts or relevant circumstances to support a finding that the use of the peremptorychallenge was racially motivated. Thus, County Court properly denied defendant's Batsonchallenge (see People v Brown, 97 NY2d 500, 507 [2002]; People v Jenkins, 84NY2d at 1003; People v Bolling, 79 NY2d 317, 325 [1992]; People v Williams,306 AD2d at 691; People v King, 277 AD2d 708, 708-709 [2000], lv denied 96NY2d 802 [2001]).
County Court's refusal to charge the jury regarding an agency defense was also proper. "Anagency defense must be submitted to the jury if any reasonable view of the evidence, consideredin the light most favorable to the defendant, supports the conclusion that the defendant, in sellingnarcotics, was acting 'solely on behalf of the buyer such as to be a mere extension orinstrumentality of the buyer' " (People v Magee, 263 AD2d 763, 765 [1999], quotingPeople v Ortiz, 76 NY2d 446, 449 [1990]). "[W]hether a particular defendant has actedonly as an agent for the buyer is a factual question for the jury, which may consider such factorsas 'the nature and extent of the relationship between the defendant and the buyer, [which person]suggested the purchase, whether the defendant has had other drug dealings with this or otherbuyers or sellers and . . . whether the defendant profited, or stood to profit, from thetransaction' " (People v Ortiz, 76 NY2d at 449, quoting People v Lam LekChong, 45 NY2d 64, 75 [1978], cert denied 439 US 935 [1978]; see People vMagee, 263 AD2d at 765).
Here, defendant made a profit on, and benefitted from, the transaction. Thus, even viewingthe other testimony in the light most favorable to defendant, we conclude that there is noreasonable view of the evidence which would support the conclusion that defendant was actingmerely as an extension or instrumentality of the buyer (see People v Ortiz, 76 NY2d at449). At best, he was an intermediary and, thus, the agency defense was not implicated (seePeople v Magee, 263 AD2d at 765).
Likewise, in order to establish entitlement to an entrapment defense, defendant mustdemonstrate that the evidence adduced at trial reasonably and sufficiently supports an inferencethat "(1) he was actively induced or encouraged to commit the offense by a public official; and(2) such inducement or encouragement created a 'substantial risk' that the offense would becommitted by defendant who was not otherwise disposed to commit it" (People v Brown,82 NY2d 869, 871 [1993], quoting Penal Law § 40.05). No reasonable view of theevidence presented here supports entitlement to the defense for the charge of criminal possessionof a controlled substance in the fourth degree.[FN*] Defendant was admittedly a cocaine addict and [*3]regularlypossessed cocaine and, therefore, was otherwise disposed to commit the offense. Accordingly,County Court did not err in refusing to give the charge (see People v Butts, 72 NY2d746, 751 [1988]).
Defendant failed to preserve for review any objection to the reading of his grand jurytestimony into evidence at his trial (see CPL 470.05 [2]). Defendant also failed todemonstrate how he was prejudiced by the damaged Rosario material in light of thetestimony that there was nothing recorded on the audiotape in question. Therefore, County Courtwas not required to fashion a sanction (see People v Wallace, 76 NY2d 953, 954 [1990];People v Brockway, 277 AD2d 482, 485-486 [2000]).
We have examined the other issues raised by defendant and conclude that they are meritless.
Cardona, P.J., Mercure, Spain and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: A person is guilty of criminalpossession of a controlled substance in the fourth degree when he or she knowingly andunlawfully possesses a drug of a certain quantity as outlined in Penal Law § 220.09.