| People v Watson |
| 2011 NY Slip Op 02713 [82 AD3d 1276] |
| March 29, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tyrone Watson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Rebecca Kramer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.),rendered May 8, 2008, convicting him of criminal facilitation in the fourth degree and criminalpossession of a controlled substance in the seventh degree, after a nonjury trial, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant was tried on charges of criminal sale of a controlled substance in the thirddegree, criminal facilitation in the fourth degree, and criminal possession of a controlledsubstance in the seventh degree. At the close of evidence in the nonjury trial, the defendant'scounsel requested that the Supreme Court consider the agency defense as to the criminal sale andcriminal facilitation counts, and the court agreed to consider the defense. The Supreme Courtsubsequently rendered its verdict, finding that the prosecution had failed to disprove beyond areasonable doubt the defendant's agency defense, and acquitting the defendant of criminal sale ofa controlled substance in the third degree on that basis. The Supreme Court convicted thedefendant of criminal facilitation in the fourth degree and criminal possession of a controlledsubstance in the seventh degree. The defendant raised no challenge to the verdict in the SupremeCourt.
The defendant's current contention that the Supreme Court improperly refused to consider theagency defense as to the charge of criminal facilitation in the fourth degree is without merit, sincethe Supreme Court expressly agreed to consider the defense, and there is no indication in therecord that it failed to do so with respect to the criminal facilitation count. The defendant infersthat the Supreme Court must have failed to consider the agency defense as to criminal facilitationin the fourth degree because had it done so, it would have been required to acquit the defendantof that charge in order to be consistent with its acquittal on the charge of criminal sale of acontrolled substance in the third degree. Thus, the defendant's argument is actually that theverdict was repugnant or inconsistent, a contention not advanced by him before the SupremeCourt. Accordingly, to the extent that the defendant contends that the verdict was repugnant orinconsistent, his argument is unpreserved for appellate review (see People v Alfaro, 66NY2d 985, 987 [1985]), and we decline to reach [*2]it in theexercise of our interest of justice jurisdiction. Mastro, J.P., Skelos, Balkin and Roman, JJ.,concur.