| People v Blue |
| 2013 NY Slip Op 04112 [107 AD3d 443] |
| June 6, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ella Blue, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), forrespondent.
Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), renderedDecember 20, 2010, convicting defendant, after a jury trial, of criminal sale of acontrolled substance in the third degree, and sentencing her, as a second felony drugoffender, to a term of five years, unanimously affirmed.
Defendant's ineffective assistance of counsel claims are generally unreviewable ondirect appeal because they involve matters outside of, or not fully explained by, therecord (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love,57 NY2d 998 [1982]). These matters not only implicate counsel's trial strategy andpreparation, but also involve undeveloped factual matters such as the nature and contentsof documents not received in evidence. The unexpanded record is insufficient to evaluateeither the reasonableness or prejudice prongs of a state or federal ineffectiveness claim(see People v Cortez, 85AD3d 409, 410 [1st Dept 2011], lv denied 19 NY3d 972 [2012]). On theexisting record, to the extent it permits review, we find that defendant received effectiveassistance under the state and federal standards (see People v Benevento, 91NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668[1984]).
After defendant testified, on direct examination, that the undercover officer gave hera "tip" of a bag of cocaine for connecting her with a seller, the prosecutor stated thatdefendant was obviously pursuing an agency defense and requested permission tocross-examine her regarding several past convictions for selling drugs to show that shedid not act as an agent of the buyer. The court concluded that the fairest course was tomake a final determination regarding the permissibility of such cross-examination afterthe prosecutor had cross-examined defendant on other matters. The court ultimatelypermitted the cross-examination regarding the prior drug sales.
Prior drug sale convictions are clearly admissible in response to an agency defense(see e.g. People vMassey, 49 AD3d 462, 462 [2008], lv denied 10 NY3d 866 [2008]).Defendant argues, however, that in light of the fact that defense counsel had alreadyinformed the court, after the People rested, that an agency defense would be presented, itwas error for the court to delay ruling on the admissibility of the past drug saleconvictions until after defendant's direct [*2]testimony.Defendant argues that this was an improper modification of the court's pretrialSandoval ruling, which had precluded identification of these convictions as drugsales, and that the modification deprived her of "definitive advance knowledge of thescope of cross-examination as to prior conduct" (People v Sandoval, 34 NY2d371, 375 [1974]). Defendant claims that her lawyer was ineffective because he failed toobject to this belated modification.
Regardless of the nomenclature used by the court and counsel, the court's ruling wasnot a modification of its Sandoval ruling, but a ruling, pursuant to People vMolineux (168 NY 264 [1901]), that evidence of prior drug sale convictions wasadmissible to rebut the claim of lack of intent to sell implicit in an agency defense(see People v Castaneda, 173 AD2d 349 [1st Dept 1991]). As a result of theagency defense, the admissibility of the prior sales was no longer a Sandovalmatter, because the sales were not simply admissible to impeach the credibility ofdefendant's testimony, but had become admissible as evidence in chief to prove intent.Even if counsel's announcement of the agency defense, before defendant's testimony, wasas definitive as defendant claims, she had no legitimate expectation that she could givetestimony that made out such a defense and escape questioning regarding past drugtransactions in which she acted as a seller. Indeed, such evidence would have beenadmissible even if she did not take the stand at all, but instead asserted an agency defenseon the basis of other evidence.
Accordingly, defendant has not established either that it was unreasonable for herattorney to acquiesce in the admission of the drug sales, and in the timing of the court'sruling, or that her attorney's conduct deprived her of a fair trial or affected the outcome.Similarly, we decline to review her unpreserved challenges to the court's ruling and itstiming in the interest of justice. As an alternative holding, we find that the prior saleconvictions were admissible, that defendant was not prejudiced by the sequence ofevents, and that there is no basis for reversal.
As noted, defendant's remaining claims of ineffective assistance are likewiseunreviewable on the present record. To the extent the present record permits review, weconclude that defendant has not shown that any of the alleged deficiencies fell below anobjective standard of reasonableness, or that, viewed individually or collectively, theydeprived defendant of a fair trial or affected the outcome of the case.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Andrias,Renwick, DeGrasse and Gische, JJ.