| People v Jones |
| 2010 NY Slip Op 07617 [77 AD3d 1170] |
| October 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JabelJones, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered April 18, 2007, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree.
Following a jury trial, defendant was convicted of criminal sale of a controlled substance inthe third degree based upon his sale of cocaine to a confidential informant during a controlledbuy operation in the City of Albany. At trial, the informant, who had previously been convictedof drug and weapons offenses in federal court but had not yet been sentenced, testified that, in thehope of receiving a lighter sentence, he agreed to cooperate with the Albany Police Departmentby contacting individuals who he knew had a reputation as drug dealers and attempting to set upcontrolled buys.
The informant testified that he had known defendant for five or six years and was aware thatdefendant had recently been released from shock incarceration in relation to a drug saleconviction. According to the informant, he called defendant and asked to buy drugs from him.Defendant agreed to sell cocaine to the informant and the controlled buy was arranged. Theevidence at trial established that police officers with the Community Response Unit observed the[*2]informant, who was equipped with a sound recording deviceand prerecorded money, meet with defendant, drive to defendant's house where defendant enteredand exited in a matter of minutes and, finally, drop off defendant at his prior location. Thereafter,the informant turned over to the police three bags of crack cocaine totaling 2.8 grams which hehad purchased from defendant for $100. Other evidence of the sale that was admitted at trialincluded a recorded telephone call from the informant to defendant just before the buy, a compactdisk containing the sounds from the body wire, and video footage of that part of the buyoperation showing defendant exiting his house and returning to the informant's vehicle.
Defendant, who testified at trial, admitted to the sale, but asserted the defenses of agency andentrapment. He claimed, in essence, that he repeatedly told the informant that he was no longerinterested in selling drugs, and that he made the sale to the informant only after the informantharassed him with numerous telephone calls. He also hoped that the informant would help himget a job at the company where the informant worked. Both defenses were charged to the jury,which rejected them and convicted defendant of criminal sale of a controlled substance in thethird degree. He was sentenced, as a second felony offender, to nine years in prison with threeyears of postrelease supervision. He now appeals.
Initially, we are not persuaded that the jury's rejection of the agency defense is against theweight of the evidence. "[W]hether the defendant was a seller, or merely a purchaser doing afavor for a friend, is generally a factual question for the jury to resolve" (People v Lam LekChong, 45 NY2d 64, 74 [1978], cert denied 439 US 935 [1978]; see People v Nealon, 36 AD3d1076, 1077 [2007], lv denied 8 NY3d 988 [2007]). Here, defendant admitted that hehad been a "drug dealer" in the past and previously convicted of criminal sale of a controlledsubstance in the fifth degree, factors which are relevant in determining whether defendant wasacting as a seller or merely an agent of the buyer when he transacted the sale at issue here (seePeople v Lam Lek Chong, 45 NY2d at 75). Furthermore, the informant's testimony and therecordings of both the telephone call and the transaction revealed that defendant exhibitedsalesman-like behavior by, among other things, setting the price and touting the quality of thedrugs (see People v Roche, 45 NY2d 78, 85 [1978], cert denied 439 US 958[1978]; People v Sheppard, 273 AD2d 498, 499 [2000], lv denied 95 NY2d 908[2000]; People v Wolf, 141 AD2d 972, 973 [1988], lv denied 72 NY2d 926[1988]). Additionally, defendant's testimony that he hoped the informant would assist him inobtaining a job indicated that he expected to benefit from the sale (see People v Roche,45 NY2d at 85; People v Brown, 52AD3d 204, 205-206 [2008], lv denied 11 NY3d 786 [2008]). To the extent thatdefendant offered a different version of certain events and alternate interpretations of theevidence presented, we defer to the jury's credibility determinations, given its opportunity to hearthe testimony and observe the witnesses' demeanor (see People v Nealon, 36 AD3d at1078).
Nor are we persuaded that defendant proved the defense of entrapment by a preponderance ofthe evidence. Specifically, he was required to prove that "(1) he was actively induced orencouraged to commit the offense by a public official; and (2) such inducement orencouragement created a 'substantial risk' that the offense would be committed by defendant whowas not otherwise disposed to commit it" (People v Brown, 82 NY2d 869, 871 [1993];see Penal Law § 40.05; People v Delaney, 309 AD2d 968, 970 [2003])."Whether a defendant is predisposed to commit an offense or was induced to commit the offenseis a question of fact" (People v McGee, 49 NY2d 48, 61 [1979], cert denied sub nom.Quamina v New York, 446 US 942 [1980]; see People v Keyes, 193 AD2d 936, 936[1993], lv denied 82 NY2d 756 [1993]).[*3]
In this case, the jury credited the confidential informant'stestimony that he called defendant only a couple of times to ask him to sell the drugs to him.Notably, "[m]erely asking a defendant to commit a crime is not such inducement orencouragement as to constitute entrapment" (People v Brown, 82 NY2d at 872; seePeople v Delaney, 309 AD2d at 970). Moreover, defendant's admitted history as a drugdealer was evidence of his predisposition to commit the crime charged (see People vCalvano, 30 NY2d 199, 204-205 [1972]), notwithstanding his claims at trial that he hadrenounced his old ways. Accordingly, we do not find the jury's rejection of the entrapmentdefense to be against the weight of the evidence.
Defendant also contends that he did not receive effective representation. We do not agree.Counsel's strategy of attempting to establish the defenses of agency and entrapment wasreasonable given the clear evidence that defendant sold cocaine to the informant. Furthermore,the record as a whole demonstrates that counsel made cogent opening and closing arguments,raised appropriate objections, effectively cross-examined the People's witnesses, and succeededin raising sufficient fact questions on both defenses to warrant submission to the jury. Underthese circumstances, we find that defendant was afforded the effective assistance of counsel(see People v Smyth, 233 AD2d 746, 748 [1996], lv denied 89 NY2d 1015[1997]).
Finally, considering defendant's extensive criminal history, including a previous convictionfor sale of a controlled substance, we do not find his sentence to be harsh and excessive, and wedecline to disturb it.
Defendant's remaining contentions have been considered and found to be without merit.
Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.