| People v Lee |
| 2015 NY Slip Op 05218 [129 AD3d 1295] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1](June 18, 2015)
| The People of the State of New York, Respondent, vGregory Lee, Appellant. |
Salvatore C. Adamo, Albany, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Carly Wolfrom of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered December 14, 2011, upon a verdict convicting defendant of the crimes ofcriminal sale of a controlled substance in the third degree (two counts) and criminalpossession of a controlled substance in the third degree (two counts).
In April 2011, defendant was arrested for possessing and selling heroin and cocainein the Town of Saugerties, Ulster County. He was indicted on three counts each ofcriminal sale of a controlled substance in the third degree and criminal possession of acontrolled substance in the third degree. Following a jury trial, he was convicted of twocounts of each offense and sentenced as a second felony offender to an aggregate prisonterm of 18 years, followed by three years of postrelease supervision. Defendantappeals.
Initially, we reject defendant's claim that he was denied a fair trial by County Court'srefusal to recuse itself. Where, as here, there are no grounds for legal disqualification(see Judiciary Law § 14), a trial judge's decision as to whetherrecusal is necessary will not be disturbed absent a clear abuse of discretion (seePeople v Moreno, 70 NY2d 403, 406 [1987]; People v Lerario, 43 AD3d 492, 492-493 [2007]; People v Wallis, 24 AD3d1029, 1031 [2005], lv denied 6 NY3d 854 [2006]). Defendant based hismotion for recusal on the fact that the County Judge who presided over his trial had beenthe District Attorney in 2005, when defendant was prosecuted by his office on a similardrug-related charge. Defendant has acknowledged that the trial was handled by assistantdistrict attorneys and that, to his knowledge, the Judge did not participate. Nevertheless,defendant asserted that the Judge must have been aware of the 2005 [*2]prosecution and, as a result, acquired prejudicialinformation. In denying the motion, the Judge stated unequivocally that he had nomemory of the prior prosecution, no knowledge or information about defendant otherthan the evidence in the current prosecution, and no reservations as to whether he couldbe fair and impartial. Nothing in our review of the record controverts these statements orsuggests any bias or prejudice. Accordingly, we find no abuse of discretion (see People v Curkendall, 12AD3d 710, 714 [2004], lv denied 4 NY3d 743 [2004]; People vWest, 254 AD2d 315, 315 [1998]; People v Rosato, 193 AD2d 1052, 1053[1993], lv denied 84 NY2d 910 [1994]; People v Jones, 143 AD2d 465,466-467 [1988]).
Defendant next claims that his convictions were not supported by legally sufficientevidence and that the verdict was against the weight of the evidence. The People soughtto prove that defendant sold narcotics to a confidential informant (hereinafter CI) and anundercover officer in two controlled buys in March 2011. The CI testified that she agreedto participate in the controlled buys in exchange for favorable treatment of her allegedinvolvement in unrelated drug transactions. On both occasions, she telephoned defendantand arranged to meet him at a motel to purchase drugs. Before each transaction, she wassearched, provided with a body wire and given prerecorded currency. She and anundercover officer then met defendant in the motel parking lot, where he accepted thebuy money and, in exchange, provided them with heroin in the first transaction and withheroin and crack cocaine in the second transaction. Members of a law enforcement drugtask force observed both controlled buys from a nearby van and made audio and videorecordings of the transactions as they occurred. The undercover officer then retainedpossession of the drugs, which were subsequently tested and identified as heroin andcocaine. At trial, the CI and the undercover officer identified defendant as the personwho participated in both transactions, officers who observed the transactions testified asto what they had seen and heard, and the audio and video recordings were played for thejury.
Defendant relied upon an agency defense at trial. Although conceding that heparticipated in both exchanges, he claimed that he merely acted as an agent for the trueseller, did not intend to sell the drugs or profit from the transactions, and provided thedrugs as a favor to the CI, who had told him that she and her companion—theundercover officer—were suffering from withdrawal symptoms. This testimonypresented factual questions and credibility assessments for the jury, which had theopportunity to hear defendant's testimony and observe his demeanor (see People vLam Lek Chong, 45 NY2d 64, 74-75 [1978], cert denied 439 US 935 [1978];People v Mitchell, 112AD3d 1071, 1071-1072 [2013], lv denied 22 NY3d 1140 [2014]). It waslikewise the jury's province to resolve inconsistencies and conflicts that defendant nowcontends rendered the trial testimony unworthy of belief, all of which were thoroughlyexplored on cross-examination. Viewing the evidence in the light most favorable to thePeople, we find a "valid line of reasoning and permissible inferences which could lead arational person to the conclusion reached by the jury" (People v Bleakley, 69NY2d 490, 495 [1987]; seePeople v Guthrie, 57 AD3d 1168, 1170 [2008], lv denied 12 NY3d 816[2009]). Further, viewing the evidence in a neutral light and deferring to the jury'scredibility assessments, we find that the People met their burden to disprove the agencydefense and that the verdict was not contrary to the weight of the evidence (see People v Robinson, 123AD3d 1224, 1226-1227 [2014], lv denied 25 NY3d 992 [2015]; People vMitchell, 112 AD3d at 1073; People v Johnson, 91 AD3d 1115, 1116-1117 [2012],lv denied 18 NY3d 959 [2012]).
County Court did not err in its Molineux, Ventimiglia orSandoval rulings. During a joint pretrial hearing, the court denied the People'srequest to introduce evidence of certain prior convictions and bad acts, specificallyincluding two 2005 convictions for criminal sale of a controlled substance in the thirddegree and certain alleged prior drug sales to the CI. The court found that the prejudicialeffect of this evidence outweighed its probative value, but warned that [*3]this ruling could change if defendant opened the doorduring trial. Thereafter, defendant asserted his agency defense during his openingstatement, and the People renewed their prior application. The court found that defendanthad opened the door, conducted an additional Ventimiglia/Molineux hearing, andconcluded that the evidence was relevant to rebut defendant's agency defense anddemonstrate his intent to sell narcotics, and that its probative value outweighed itspotential for prejudice. We find no error. It is well established that a defendant opens thedoor to Molineux evidence by asserting an agency defense (see People vMitchell, 112 AD3d at 1073; People v Nealon, 36 AD3d 1076, 1078 [2007], lvdenied 8 NY3d 988 [2007]; People v Ortiz, 259 AD2d 979, 980 [1999],lv denied 93 NY2d 1024 [1999]), and any potential prejudice was mitigated bythe court's timely and proper limiting instructions (see People v Small, 12 NY3d 732, 733 [2009]).
As for County Court's Sandoval rulings, the People sought before the trial toimpeach defendant with evidence of his numerous prior convictions and bad acts in theevent that he elected to testify. Upon such an application, a trial court, in its discretion,"may exclude the evidence entirely; limit the prosecution's inquiry to the mere fact thatthere has been a prior conviction; it may limit inquiry to the existence and nature of theprior conviction; or it may permit examination into the facts and circumstancesunderlying the prior conviction" (People v Smith, 18 NY3d 588, 593 [2012] [internalquotation marks, brackets and citations omitted]). During the joint hearing, the courtcarefully considered each of defendant's prior convictions and ruled on the extent towhich the People could question him, precluding all inquiry into some of the convictionsand limiting the People's inquiry into the nature and underlying circumstances of almostall of the others. When defendant testified at trial, the People questioned him in accordwith these directions, and defendant offered no objections. Considering the numerousrestrictions imposed as a result of the court's careful analysis, we find no abuse ofdiscretion (see People vNichol, 121 AD3d 1174, 1175-1176 [2014]).
Defendant next contends that County Court erred by granting the jury's request toallow the second seated juror to take over the duties of the jury foreperson. However,defendant was present and raised no objection when his counsel affirmatively consentedto the substitution, and his counsel did not object when the decision was communicatedto the jury. Even if the substitution was in some manner erroneous, it did not constitute amode of proceedings error and, contrary to defendant's contention, preservation wasrequired (see People vAlexander, 104 AD3d 1221, 1221 [2013], lv denied 21 NY3d 941[2013]; see generally People v Agramonte, 87 NY2d 765, 769-770 [1996]). Wedecline to take corrective action in the interest of justice.
Defendant was not denied a fair trial by County Court's refusal to instruct the jury asto an intoxication defense. Such a charge is warranted when "there is sufficient evidenceof intoxication in the record for a reasonable person to entertain a doubt as to the elementof intent on that basis . . . [or when] the record contains evidence of therecent use of intoxicants of such nature or quantity to support the inference that theiringestion was sufficient to affect [the] defendant's ability to form the necessary criminalintent" (People v Rodriguez, 76 NY2d 918, 920 [1990] [internal quotation marksand citations omitted]). Here, there was no evidence that defendant was intoxicated at thetime of the drug transactions except for his own self-serving testimony, and such "bareassertions," standing alone, do not warrant an intoxication charge (People v Sirico, 17 NY3d744, 745 [2011]; accordPeople v Duffy, 119 AD3d 1231, 1234 [2014], lv denied 24 NY3d 1043[2014]). Likewise, the court properly rejected defendant's request for an instruction onthe definition of a mandated reporter pursuant to Social Services Law§ 413. Defendant's claim that the police had improperly failed to report theCI to a child protective agency had no bearing on his guilt, and the requested chargewould only have served to confuse the jurors.
[*4] Although defendant now contends that County Courtresponded improperly to a jury note, his counsel agreed to the court's proposed responsein defendant's presence and did not object when the response was communicated to thejury. Our review of the record reveals that the court complied with its "coreresponsibilit[ies]" to give counsel notice of the specific contents of the note and anopportunity to participate in framing appropriate responses, and to provide the jury witha meaningful response (People vKisoon, 8 NY3d 129, 134 [2007]; see CPL 310.30; People vO'Rama, 78 NY2d 270, 276 [1991]). Accordingly, preservation was required, and wedecline to take corrective action in the interest of justice (see People v Woodrow, 89AD3d 1158, 1160 [2011], lv denied 19 NY3d 978 [2012]; People v Rivera, 83 AD3d1370, 1370-1371 [2011], lv denied 17 NY3d 904 [2011]).
Finally, we reject defendant's contention that his sentence was harsh and excessive.He was not sentenced to the maximum permissible term (see Penal Law§ 70.70 [3] [b] [i]), and the record provides no support for his claim that hewas punished for exercising his right to trial (see People v Nichol, 121 AD3d at1178; People v Massey, 45AD3d 1044, 1048 [2007], lv denied 9 NY3d 1036 [2008]). In view ofdefendant's lack of remorse and his extensive criminal history—which dates backto 1984 and includes convictions for robbery, kidnapping and assault, as well asdrug-related offenses—we perceive no abuse of discretion or extraordinarycircumstances warranting a reduction in the interest of justice (see People v McDonald, 43AD3d 1207, 1207 [2007], lv denied 10 NY3d 867 [2008]; People v Davis, 4 AD3d567, 568 [2004], lv denied 2 NY3d 798 [2004]).
Peters, P.J., Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.