| People v Poole |
| 2010 NY Slip Op 09687 [79 AD3d 1685] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Collen T.Poole, Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedNovember 16, 2009. The judgment convicted defendant, upon a jury verdict, of criminal sale of acontrolled substance in the third degree and criminal possession of a controlled substance in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him after a jury trial of criminal saleof a controlled substance in the third degree (Penal Law § 220.39 [1]) and criminalpossession of a controlled substance in the third degree (§ 220.16 [1]), defendant contendsthat County Court's Sandoval ruling constitutes an abuse of discretion. By failing toobject to the court's ultimate Sandoval ruling, defendant failed to preserve that contentionfor our review (see People vAnthony, 74 AD3d 1795 [2010], lv denied 15 NY3d 849 [2010]; People v Goodrum, 72 AD3d 1639[2010], lv denied 15 NY3d 773 [2010]; People v Walker, 66 AD3d 1331 [2009], lv denied 13NY3d 942 [2010]). In any event, we reject that contention. " 'The extent to which priorconvictions bear on the issue of a defendant's credibility is a question entrusted to the sounddiscretion of the court, reviewable only for clear abuse of discretion' " (People v Nichols,302 AD2d 953, 953 [2003], lv denied 99 NY2d 657 [2003]; see People v Hayes,97 NY2d 203, 207-208 [2002]). Here, we conclude that the court's ruling was " 'a considereddecision [that] took into account all relevant factors and further struck a proper balance betweenthe probative value of the[ ] convictions on defendant's credibility and the possible prejudice tohim' " (People v Mitchell, 57 AD3d1308, 1311 [2008]). "The fact that the prior conviction[ ] of attempted [criminal possessionof a controlled substance in the fifth degree is] similar to the [crimes] charged herein does notpreclude [its] use on cross-examination" (People v Montgomery, 288 AD2d 909, 910[2001], lv denied 97 NY2d 685 [2001]; see People v Walker, 83 NY2d 455,457-459 [1994]).
Defendant further contends that the evidence is not legally sufficient to support theconviction because the People failed to disprove his agency defense beyond a reasonable doubt."As a preliminary matter, we reject the People's contention that defendant failed to preserve hiscontention for our review. Defendant's motion [for a trial order of dismissal] at the close of thePeople's case was [*2]specifically directed at the alleged errornow raised on appeal" (People vDaniels, 8 AD3d 1022, 1023 [2004], lv denied 3 NY3d 705 [2004] [internalquotation marks omitted]). Contrary to defendant's contention, however, the conviction issupported by legally sufficient evidence. "The determination . . . whether thedefendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factualquestion for the jury to resolve on the circumstances of the particular case" (People v LamLek Chong, 45 NY2d 64, 74 [1978], cert denied 439 US 935 [1978]; see People v Brown, 50 AD3d1596, 1597 [2008]). The evidence, viewed in the light most favorable to the People (seePeople v Contes, 60 NY2d 620, 621 [1983]), is "legally sufficient . . . toestablish that defendant was the seller of a controlled substance and not an agent of the buyer"(People v Burden, 288 AD2d 821, 821 [2001], lv denied 97 NY2d 751 [2002]).Further, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "It cannot be said that, inrejecting the agency defense, the jury failed to give the evidence the weight it should beaccorded" (People v Watkins, 284 AD2d 905, 906 [2001], lv denied 96 NY2d943 [2001]).
Defendant contends that he was denied effective assistance of counsel based on, inter alia,defense counsel's failure to object to the introduction of evidence of his other drug sales. Wereject that contention. "There can be no denial of effective assistance of . . . counselarising from [defense] counsel's failure to 'make a motion or argument that has little or no chanceof success' " (People v Caban, 5NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3NY3d 702 [2004]). "[T]he fact that [defendant] interposed an agency defense permitted thePeople to introduce evidence of [the other] drug sales" (People v Massey, 49 AD3d 462, 462 [2008], lv denied 10NY3d 866 [2008]; see also People v Chaires, 171 AD2d 955, 956 [1991], lvdenied 78 NY2d 963 [1991]). Viewing the evidence, the law and the circumstances of thiscase in totality and as of the time of the representation, we conclude that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Centra,Fahey, Peradotto and Pine, JJ.