| People v Johnson |
| 2012 NY Slip Op 00255 [91 AD3d 1115] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RonaldJohnson, Jr., Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Tracy Steeves of counsel), forrespondent.
Spain, J.P. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.),rendered August 26, 2008, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree and criminal possession of a controlled substance in thethird degree.
Defendant appeals from his conviction, after a jury trial, of criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in the thirddegree. We affirm.
The majority of defendant's contentions on appeal were unpreserved for review by timelyobjections at trial. However, as defendant asserts that he was deprived of the effective assistanceof counsel based primarily on counsel's failure to advance these issues at trial, we must addressthem in that context.
First, defendant seeks resentencing, arguing that County Court failed to comply with CPL400.21 when sentencing him as a second felony offender, thereby depriving him of due process.CPL 400.21 (2) requires that a predicate felony statement be filed by the People and provided toa defendant prior to the imposition of sentence. The sentencing minutes, however, [*2]demonstrate that defendant was advised that he was beingsentenced as a second felony offender and, after the court related the details of defendant'sprevious offense from the prior felony information, defendant affirmed that the information wascorrect and that he did not wish to contest the prior felony statement. Under these circumstances,there was substantial compliance with the statutory requirements of CPL 400.21 (see People v Glynn, 72 AD3d1351, 1352 [2010], lv denied 15 NY3d 773 [2010]; People v Bynum, 68 AD3d 1348,1350 [2009], lv denied 14 NY3d 798 [2010]).
Defendant also alleges unpreserved errors in County Court's charge to the jury. We discernno reversible error in the court's charge. Defendant's assertion that the court improperly instructedthe jury not to consider defense counsel's closing statement as evidence is belied by the record,which reflects that the court correctly instructed the jury—multiple times—that bothparties' opening and closing statements were not to be considered evidence. Although the courtincorrectly stated—early in its charge to the jury—that a "jury trial is the process bywhich we attempt to ascertain the truth" (see People v Benedetto, 294 AD2d 958, 959[2002]; People v Rivera, 116 AD2d 371, 375-376 [1986]), the court thereafter thoroughlyand accurately explained that the burden remains upon the People to prove each element of thecharges beyond a reasonable doubt. Finally, contrary to defendant's contention, we find no errorin the charge given by the court with respect to the People's burden of proof to disprove theagency defense. Accordingly, we hold that defendant was not deprived of the effective assistanceof counsel based upon any of the claimed, unpreserved errors. Likewise, we perceive no error intrial counsel's decision not to request that County Court poll the jury after the verdict (seePeople v Bynum, 68 AD3d at 1350). Finally, defendant fails to articulate how he wasprejudiced by counsel's failure to object to a missing surveillance tape or to the chain of custodyof the package entered into evidence. Counsel pursued an agency defense, which includeddefendant's admission to the existence and transfer of the drugs in question. Indeed, objectivelyviewing the record as a whole, we conclude that defendant was provided with meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Garrow, 75 AD3d 849,852 [2010]).
Defendant's assertion that his conviction of criminal sale of a controlled substance in thethird degree was not supported by legally sufficient evidence is not preserved. Nevertheless, wenecessarily review the evidence adduced at trial as to each of the elements of that crime in thecontext of defendant's challenge to the weight of the evidence (see People v Stevens, 87 AD3d754, 754 n [2011]; People vWilson, 71 AD3d 1333, 1334 [2010]; People v Morrison, 71 AD3d 1228, 1229 [2010], lv denied15 NY3d 754 [2010]). Here, we find that defendant "knowingly and unlawfully [sold]. . . a narcotic drug" (Penal Law § 220.39 [1]),[FN*]and we are not persuaded that the jury's rejection of the agency defense is against the weight ofthe evidence. Significantly, whether a defendant is a " 'seller, or merely a purchaser doing a favorfor a friend, is generally a factual question for the jury to resolve' " (People v Poole, 79 AD3d 1685,1686 [2010], lv denied 16 NY3d 862 [2011], quoting People v Lam Lek Chong,45 NY2d 64, 74 [1978], cert denied 439 US 935 [1978]).
The People presented the testimony of a confidential informant (hereinafter CI) and anundercover police officer. After the CI telephoned defendant to set up a time and place to meet,the CI and the officer met defendant at the agreed-upon location and the CI gave him $80 in[*3]exchange for a package containing four glassine envelopescontaining a substance later identified as heroin. The tape-recorded conversation between the CIand defendant arranging the meeting for the purpose of purchasing drugs was introduced intoevidence. Defendant did not dispute these events, but testified that the transaction was not a sale;instead, it was simply a purchase accomplished purely as a favor to the CI. Defendant explainedthat he and the CI had a history of getting drugs for each other—depending on who wasable to procure them—and having sex, and that he obtained the drugs as a favor for her,hoping they would get together that evening. The CI admitted that she had previously had sexualrelations with defendant, but maintained that he provided the drugs and that she had neverobtained drugs for defendant. Following the exchange, defendant immediately left the scene and,although he was later observed down the street talking to another individual who defendantclaimed was the provider of the drugs, there is no evidence apart from defendant's testimony thathe handed the money he obtained from the sale over to someone else. While a different verdict"would not have been unreasonable, viewing the evidence in a neutral light and deferring to thejury's superior position to determine witness credibility," we find that the verdict is supported bythe weight of the evidence (People vDanford, 88 AD3d 1064, 1066 [2011]; see People v Guthrie, 57 AD3d 1168, 1170 [2008], lvdenied 12 NY3d 816 [2009]). Indeed, even if defendant had not profited financially from thesale, his admission that he hoped to have sex in exchange for obtaining the drugs demonstratesan expected benefit from the sale (seePeople v Jones, 77 AD3d 1170, 1172 [2010], lv denied 16 NY3d 896 [2011]).
Finally, we have considered, and reject, defendant's pro se contention that the People violatedCPL 200.70 by constructively amending the indictment at trial. Contrary to defendant'sassertions, the People's reliance on testimony that defendant sold drugs to the CI and anundercover officer is not contrary to the statement in the bill of particulars alleging that defendantconducted a sale of drugs in the presence of an undercover police officer. Indeed, we find that thePeople's theory of the case did not change and, thus, detect no prejudice to defendant (seeCPL 200.70 [1]).
Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: A sale is an act "to sell,exchange, give or dispose of to another" (Penal Law § 220.00 [1]).