| People v Mosby |
| 2010 NY Slip Op 08388 [78 AD3d 1371] |
| November 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Malik A. Mosby,Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Andrew M. McElwee of counsel), forrespondent.
Kavanagh, J. Appeals (1) from a judgment of the County Court of Tompkins County (Sherman,J.), rendered May 23, 2006, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree (two counts) and criminal possession of a controlled substancein the third degree (two counts), (2) by permission, from an order of said court, entered October 18,2007, which denied defendant's motion pursuant to CPL article 440 to, among other things, vacate thejudgment of conviction, and (3) by permission, from an order of said court, entered July 28, 2008,which, upon renewal, adhered to its prior order.
Defendant was charged by indictment with selling cocaine, fentanyl and/or oxycodone to policeofficers working in an undercover capacity on two separate occasions in August 2005. Following a jurytrial, he was found guilty of criminal sale of a controlled substance in the third degree (two counts) andcriminal possession of a controlled substance in the third degree (two counts) and later sentenced, as asecond felony offender, to an aggregate prison term of 10 years, plus three-year periods of postreleasesupervision on each conviction as they relate to each drug transaction.
County Court subsequently denied defendant's motion pursuant to CPL 440.10 and [*2]440.20 to vacate his judgment of conviction and sentence, as well as hismotion to renew that application based on the discovery of new evidence. Defendant now appeals fromhis judgment of conviction and, by permission, from the denial of his CPL article 440 motion and hismotion to renew.
In a prior opinion, this Court determined that the matter should be remitted to County Court todetermine whether the prosecution failed to disclose certain Rosario material at trial, and, if so,whether a reasonable possibility existed that, had the jury heard this evidence or any part of it, it wouldhave arrived at a different verdict (People vMosby, 69 AD3d 1045 [2009]). Upon remittal and after a hearing, County Court determinedthat the material should have been disclosed but, even if it had been heard by the jury, it would not haveresulted in a different verdict. We agree and affirm the judgment of conviction, as well as both ordersdenying defendant's CPL article 440 motion and motion to renew.
While the prosecution provided defendant with tape recordings and other materials generated bythe drug sales charged in the indictment, it originally failed to disclose the existence of a tape recordingof a conversation between defendant and an undercover police officer that took place prior to thetransactions in question. This conversation set the stage for the undercover police officer's subsequentdealings with defendant, and the tape recording of it should have been disclosed to defendant prior totrial (see CPL 240.45 [1] [a]; People v Rosario, 9 NY2d 286, 290-291 [1961],cert denied 368 US 866 [1961]). However, we agree with County Court that, had this taperecording or any part of it been put into evidence at trial, it is highly unlikely, given its content, that thejury would have reached a different result (see CPL 240.75; People vBaghai-Kermani, 84 NY2d 525, 532 [1994]; People v Coley, 33 AD3d 383, 384 [2006], lv denied 8 NY3d844 [2007]). The conversation clearly implicated defendant in ongoing drug activity, and nothing saidduring it was exculpatory or could have been used to support his proposed agency defense.
Next, we reject defendant's arguments that he was denied the effective assistance of counsel due tocounsel's failure to request an agency charge with respect to counts three and four of the indictment andan expanded agency charge with respect to counts seven and eight of the indictment. To establish sucha claim, "defendant must demonstrate that his attorney failed to provide meaningful representation" (People v Caban, 5 NY3d 143, 152[2005]). While it is not necessary in making such a claim that defendant establishes that he wasprejudiced by counsel's failures, such a showing is undoubtedly significant; however, "[o]ur focus is onthe fairness of the proceedings as a whole" (People v Stultz, 2 NY3d 277, 284 [2004]; see People v Caban,5 NY3d at 155-156; People v Baldi, 54 NY2d 137, 146-147 [1981]). Moreover, adefendant must "demonstrate the absence of strategic or other legitimate explanations for counsel'sallegedly deficient conduct," and counsel will not be found to have been ineffective simply as a result ofa failure "to make a motion or argument that has little or no chance of success" (People vCaban, 5 NY3d at 152 [internal quotation marks and citations omitted]).
Defendant's claim of ineffective assistance is based in part on his contention that counsel did not doall that he should have in pursuing an agency defense at trial. A defendant cannot be convicted of theillegal sale of narcotics if, at the time of the transaction, it is established that he is acting "solely as theagent of the buyer" (People v Lam Lek Chong, 45 NY2d 64, 73 [1978], cert denied439 US 935 [1978]; accord People v Andujas, 79 NY2d 113, 117 [1992]). Moreover, amore expansive explanation regarding the agency defense should be given if, at the time of the sale,defendant [*3]has acted "both as a buyer in his [or her] own right andas agent to buy for another" (People v Andujas, 79 NY2d at 118). Here, defendant's counseldid not request an expanded agency charge, but did request, as previously noted, the standard agencycharge with respect to all but two counts of the indictment. Moreover, credible evidence was presentedat trial that defendant initiated one of the sales and expected to receive a benefit—beyond anincidental benefit of drugs for himself—as a result of the other. In addition, no evidence waspresented that defendant was acting as the undercover officer's agent when he purchased the drugs orthat he had obtained them prior to selling them to the undercover officer for his own personalconsumption. Under the circumstances, we cannot say that counsel did not have a reasonable basis fornot requesting that County Court give the jury a more expansive explanation of the agency defense in itscharge (see People v Brimberry, 237 AD2d 229 [1997]; People v Job, 217 AD2d497, 498 [1995], affd 87 NY2d 956 [1996]; see also People v Lam Lek Chong, 45NY2d at 75; People v Sheppard, 273 AD2d 498, 499 [2000], lv denied 95 NY2d908 [2000]).
We also reject defendant's argument that counsel failed to effectively represent him when he did notobtain a copy of the original search warrant. Defendant argues that information in the affidavit providedsupport for his claim that he only sold drugs to the undercover police officer because she promised tofind him employment. However, the affidavit also implicated defendant in a drug sale for which he wasnever charged and, as such, can hardly be characterized as exculpatory and, more importantly, whenread in its entirety, sets forth facts that are manifestly inconsistent with any agency defense (seePeople v Lam Lek Chong, 45 NY2d at 75-76; People v Brown, 52 AD3d 204, 205-206 [2008], lv denied 11NY3d 786 [2008]).
Finally, defendant argues that counsel provided ineffective representation because he failed torecognize that defendant's out-of-state convictions did not constitute felonies in New York and that, asa result, he should not have been sentenced as a second felony offender. For sentencing purposes, "aprior out-of-[s]tate conviction is a predicate felony conviction in New York when the foreign convictioncarries with it a sentence of imprisonment in excess of one year" and such a sentence is authorized forthe same offense in New York (People v Gonzalez, 61 NY2d 586, 589 [1984]; seePenal Law § 70.06 [1] [b] [i]). In determining whether an out-of-state conviction qualifies as afelony in New York, the general rule is that "the language of the relevant statute[s] is determinative"(People v Stinson, 151 AD2d 842, 843 [1989]), and the underlying allegation as spelled out inthe accusatory instrument "may ordinarily not be considered, because such instruments frequentlycontain nonessential recitals . . . [and] there can be no assurance that such allegationsplayed any actual part in the foreign conviction" (People v Muniz, 74 NY2d 464, 468 [1989][citations omitted]; see Matter of North vBoard of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 751 [2007];People v Gonzalez, 61 NY2d at 589). However, a court may look to the underlyingaccusatory instrument if the conviction is based on a statute that "renders criminal not one act butseveral acts which, if committed in New York, would in some cases be felonies and in others wouldconstitute only misdemeanors" (People v Gonzalez, 61 NY2d at 590; see People vYancy, 86 NY2d 239, 246-247 [1995]; People v Muniz, 74 NY2d at 468). Moreover,this exception applies where, as here, the foreign statute "define[s] the offense by means of twoseparate and unrelated acts" (People v Gonzalez, 61 NY2d at 591; see People ex rel.Gold v Jackson, 5 NY2d 243, 245-246 [1959]; People v Adams, 164 AD2d 546,554-556 [1991], lv denied 77 NY2d 957 [1991]; cf. People v Olah, 300 NY 96,98-100 [1949]; see also People v Stinson, 151 AD2d at 843). In other words, if "the recitalsin the accusatory instrument that describe the particular act or acts underlying the charge are necessaryto . . . isolate and identify the statutory crime of which the defendant was [*4]accused[,] . . . [they] are not merely surplusage, and theymay properly be considered in determining whether Penal Law § 70.06 (1) (b) (i) has beensatisfied" (People v Muniz, 74 NY2d at 468).
Defendant's status as a second felony offender is predicated on his 1999 forgery conviction inVirginia.[FN*]The Virginia statute criminalizes the forgery of any writing to the prejudice of another, or knowinglyuttering a forged writing or knowingly attempting to employ a forged writing as true (see VaCode Ann § 18.2-172). It also criminalizes obtaining "by any false pretense or token, thesignature of another person, to any such writing, with intent to defraud any other person" (Va CodeAnn § 18.2-172). The parties are in agreement that this conduct is punishable in Virginia aseither a felony or a misdemeanor, and obtaining a signature by false pretense is a separate act thatconstitutes a crime under the Virginia statute. However, obtaining a signature by false pretenses wouldnot qualify as a felony in New York unless it was accompanied by acts committed by defendant thatwould constitute the making, altering or completion of such a writing (see People v Seavey,305 AD2d 937, 938 [2003], lv denied 100 NY2d 620 [2003]; Penal Law art 170; Donnino,Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 170.00).
Therefore, it is necessary to consider the content of the accusatory instrument submitted inconnection with defendant's 1999 Virginia conviction to determine if it constitutes a prior felony forsentencing purposes in New York (see Penal Law § 70.06 [1] [b] [i]; People ex rel.Gold v Jackson, 5 NY2d at 245-246; People v Adams, 164 AD2d at 555-556; seealso People v Gonzalez, 61 NY2d at 591; People v Coager, 266 AD2d 645, 647 [1999],lv denied 94 NY2d 917 [2000]; cf. People v Muniz, 74 NY2d at 470-471;People v Stinson, 151 AD2d at 843). That instrument specifically alleges that defendant"forge[d], with intent to defraud a check" and, as such, spells out criminal acts which, taken together,are the equivalent of forgery in the second degree—a class D felony in New York (seePenal Law § 170.10 [1] [criminalizing the making, completion or altering of a written instrumentthat may affect "a legal right, interest, obligation or status"]; see also People v Gause, 2 AD3d 1449, 1450 [2003] [holding that theelement that [*5]renders forgery a felony is the requirement that thewriting affect a legal right]). As a result, defendant's conviction for forgery in Virginia qualified as a priorfelony for sentencing purposes in New York, and County Court properly denied his CPL 440.20motion to vacate the sentence (see People v Coager, 266 AD2d at 647; People vAdams, 164 AD2d at 556; cf. People v Stinson, 151 AD2d at 843-844).
Defendant's arguments, made in connection with his CPL 440.10 motion, regarding ineffectiveassistance of counsel on this issue are also unavailing; indeed, even if we were to find that counsel erredin failing to challenge the predicate felony offender statement, that error, in our view, did not rise to thelevel of ineffective assistance of counsel under the circumstances of this case (see People vBates, 299 AD2d at 730; cf. People vGarcia, 19 AD3d 17, 18 [2005]; People v Perron, 287 AD2d 808, 808-809 [2001],lv denied 97 NY2d 686 [2001]).
Defendant's remaining contentions regarding ineffective assistance of counsel and his argument,made on his CPL 440.10 motion, that he was denied a public trial have been considered and found tobe lacking in merit.
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment andorders are affirmed.
Footnote *: Although the District Attorneysubmitted a predicate felony offender statement listing seven prior Georgia and Virginia felonyconvictions, the People now concede that defendant's convictions for felony revocation and felonyfailure to appear do not constitute predicate felonies in New York (see Penal Law §70.06 [1] [b]). While the remaining convictions for forgery were obtained under statutes defining crimesthat may constitute New York felonies (see Ga Code Ann § 16-9-1; Va Code Ann§ 18.2-172), the District Attorney provided an accusatory instrument for only the 1999 Virginiaforgery conviction. Therefore, that accusatory instrument is necessarily the only one that we mayconsider in determining whether any of defendant's out-of-state convictions would constitute a felony ifcommitted in New York, notwithstanding counsel's admission at sentencing that defendant's criminalhistory included "forged checks" (see People ex rel. Goldman v Denno, 9 NY2d 138, 141-143[1961]; People v Bates, 299 AD2d 727, 729 [2002], lv denied 99 NY2d 626[2003]; see also People v Gonzalez, 61 NY2d at 591).