| People v Vanguilder |
| 2015 NY Slip Op 06175 [130 AD3d 1247] |
| July 16, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vChristopher M. Vanguilder, Appellant. |
Robert Gregor, Lake George, for appellant.
G. Scott Walling, Special Prosecutor, Schenectady, for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Saratoga County(Scarano, J.), rendered May 30, 2014, upon a verdict convicting defendant of the crimesof criminal sale of a controlled substance in the third degree (two counts), criminalpossession of a controlled substance in the third degree (two counts) and criminalpossession of a controlled substance in the seventh degree (two counts).
On two separate occasions, a police officer fit a confidential informant (hereinafterthe CI) with a recording device and sent him into defendant's mobile home in SaratogaCounty to buy crack cocaine. After both controlled buys occurred, defendant and SadieWillis were indicted for the crimes of criminal sale of a controlled substance in the thirddegree (two counts), criminal possession of a controlled substance in the third degree(two counts) and criminal possession of a controlled substance in the seventh degree(two counts). In full satisfaction of the indictment against her, Willis pleaded guilty toattempted sale of a controlled substance in the third degree and agreed to testify againstdefendant. Following a jury trial, at which defendant raised the defense of agency,defendant was convicted as charged and sentenced, as a second felony drug offender, toan aggregate prison term of 10 years to be followed by six years of postreleasesupervision. Defendant appeals.
The verdict is supported by legally sufficient evidence and is not against the weightof such evidence. As relevant here, the People were required to establish that defendantknowingly and unlawfully possessed a narcotic drug with intent to sell it (seePenal Law § 220.16 [1]), and that defendant knowingly and unlawfully solda narcotic drug (see Penal Law § 220.39 [1]). [*2]Additionally, since defendant advanced an agency defense,it was incumbent upon the People to establish that defendant had not acted "solely as theagent of the buyer" (People v Lam Lek Chong, 45 NY2d 64, 73 [1978] [internalquotation marks and citation omitted], cert denied 439 US 935 [1978]), as such adefense negates the intent element of both offenses (see People v Watson, 20 NY3d 182, 185-186 [2012]; People v Guthrie, 57 AD3d1168, 1169 [2008], lv denied 12 NY3d 816 [2009]). The issue of whether adefendant was the seller of a drug, "or merely a purchaser doing a favor for a friend, isgenerally a factual question for the jury to resolve on the circumstances of the particularcase" (People v Lam Lek Chong, 45 NY2d at 74; see People v Guthrie,57 AD3d at 1169). In so doing, "the jury . . . may consider such factors asthe nature and extent of the relationship between the defendant and the buyer, whether itwas the buyer or the defendant who suggested the purchase, whether the defendant hashad other drug dealings with this or other buyers or sellers and, of course, whether thedefendant profited, or stood to profit, from the transaction" (People v Ortiz, 76NY2d 446, 449 [1990] [internal quotation marks and citation omitted]). "Notably, profitdoes not necessarily equate with pecuniary gain" in determining whether a defendant maystand to benefit from the underlying sale (People v Robinson, 123 AD3d 1224, 1226 [2014], lvdenied 25 NY3d 992 [2015]).
Here, the CI testified that he had known defendant for approximately one month andhad bought drugs in his home on 5 to 10 occasions. Willis testified that she had knowndefendant for approximately one year and had sold drugs out of his home on about 12occasions. According to Willis, she would give defendant crack cocaine in exchange forthe use of his house and "whenever [she] felt that he deserved it." Willis furtherexplained that those occasions when defendant deserved crack cocaine were whendefendant made sales of the drug. Willis acknowledged that her customers were"[defendant's] people" because she was from New York City. Willis further testified thatshe kept exclusive control of the crack cocaine at all times, except for the transactions,due to the fact that defendant was a user. On the video recording of the first sale, Willisand the CI wait for defendant to begin the transaction, at which point the CI givesdefendant the money, and defendant counts it and gives the CI the crack cocaine. On therecording of the second sale, defendant answers the door, takes the money from the CIand counts it, whereupon Willis goes to get the crack cocaine and hands it to defendant,who then gives it to the CI. During both sales, defendant asks for "a hit" from the sale,and when the CI refuses, defendant responds, "You never do" and, "It don't matter tome."
Although defendant did not receive a monetary share of the profits from the drugsales, Willis testified that she gave him crack cocaine in exchange for his assistance witha successful sale. Further, defendant touted the product and thereby exhibited"[s]alesman-like behavior" (People v Roche, 45 NY2d 78, 85 [1978], certdenied 439 US 958 [1978]; see People v Robinson, 123 AD3d at 1226).Additionally, the evidence of defendant's prior conviction of criminal possession of acontrolled substance in the fifth degree showed that defendant previously participated ina drug transaction in which he had intended to sell drugs (see People v Monykuc, 97AD3d 900, 901 [2012]; People v Lauderdale, 243 AD2d 760, 761 [1997],lv denied 91 NY2d 875 [1997]). Viewing the foregoing evidence in a light mostfavorable to the People, and according them every reasonable inference (see People vContes, 60 NY2d 620, 621 [1983]; People v Abbott, 107 AD3d 1152, 1155 [2013]), theevidence evinces that defendant played a greater role than just a buyer's agent in the drugtransactions (see People v Guthrie, 57 AD3d at 1169-1170). Further, the jury wasalso entitled to credit this evidence that defendant acted as an agent of Willis, the sellerand, deferring to those credibility determinations, we do not find defendant's convictionsto be against the weight of the evidence (see People v Robinson, 123 AD3d at1226-1227).
County Court did not err in allowing testimony that a person threatened the CI with a[*3]gun in defendant's home. Defendant's objection thatthis testimony was outside the scope of his cross-examination of the CI did not preservehis Molineux and relevancy arguments for our review (see People v Mattis, 108 AD3d872, 875 [2013], lv denied 22 NY3d 957 [2013]; see generally People vGray, 86 NY2d 10, 20-21 [1995]). In any event, no Molineux analysis wasrequired, as defendant was not involved in the alleged incident wherein the CI wasthreatened with a handgun (seePeople v Arafet, 13 NY3d 460, 465 [2009]; People v Kindred, 100 AD3d 1038, 1039 [2012], lvdenied 21 NY3d 913 [2013]). Additionally, the evidence in question was relevantgiven previous questioning by defense counsel as to whether the CI chose to implicatedefendant—rather than allegedly more central drug dealers in theoperation—because a controlled buy at defendant's home would be safer for theCI. Further, any minimal prejudice to defendant that could arise from the CI's descriptionof another party's bad act in defendant's home did not substantially outweigh theprobative value of such evidence, especially given the court's limiting instructions (see People v Burkett, 101AD3d 1468, 1471 [2012], lv denied 20 NY3d 1096 [2013]; People vKindred, 100 AD3d at 1039; see generally People v Mateo, 2 NY3d 383, 425[2004], cert denied 542 US 946 [2004]).
County Court provided the jury with meaningful responses to their inquiries duringdeliberations. Defendant contends that the court failed to meaningfully respond to thejury's inquiries because it failed to offer a supplemental explanation directly addressingthe relationship between the agency defense and accessorial liability. However, althoughthe jury asked for additional instruction regarding the agency defense and then aread-back of the court's charge regarding accessorial liability, it did not explicitly seek anexplanation from the court as to the relationship between that defense and that theory ofliability. Under the circumstances, County Court's choice to accurately answer thequestions that the jury asked without going beyond the jury's request was within thecourt's discretion and appropriately responsive (see CPL 310.30; People vAlmodovar, 62 NY2d 126, 131-132 [1984]; People v Acevedo, 118 AD3d 1103, 1107-1108 [2014]; People v Williams, 28 AD3d1005, 1010 [2006], lv denied 7 NY3d 819 [2006]).
As the People concede, the two counts of criminal possession of a controlledsubstance in the seventh degree are inclusory concurrent counts of criminal possession ofa controlled substance in the third degree (compare Penal Law§ 220.16 [1] with Penal Law § 220.03; see Peoplev Bailey, 295 AD2d 632, 635 [2002], lv denied 98 NY2d 766 [2002])."When inclusory counts are submitted for consideration, they must be submitted in thealternative since a conviction on the greater count is deemed a dismissal of every lessercount" (People v Bailey, 295 AD2d at 635; see CPL 300.40 [3] [b]; People v Miller, 6 NY3d295, 300 [2006]; People v Paige, 120 AD2d 808, 811 [1986], lvdenied 68 NY2d 772 [1986]). Therefore, defendant's misdemeanor convictions ofcriminal possession of a controlled substance in the seventh degree must be reversed andthe concurrent, one-year sentences vacated (see People v Bailey, 295 AD2d at635; People v Florez, 265 AD2d 491, 491-492 [1999], lv denied 94NY2d 880 [2000]).
We are not persuaded, however, that defense counsel's failure to request analternative charge on these counts "elevates this case to the level of one of those rarecases where a single lapse can constitute ineffective assistance of counsel" (People vBaker, 58 AD3d 1069, 1072 [2009]). Although counsel erred on a clear-cut issue (see e.g. People v Coleman, 2AD3d 1045, 1047 [2003]; People v Bailey, 295 AD2d at 635; People vFlorez, 265 AD2d at 491-492; People v Brown, 198 AD2d 291, 292 [1993],lv denied 82 NY2d 891 [1993]; People v Wilson, 162 AD2d 747, 748[1990], lv denied 76 NY2d 945 [1990]), such an error must be viewed in thecontext of the entire representation, particularly in light of the other charges thatdefendant faced. Most importantly here, counsel's error appears to arise from his failureto properly consider the misdemeanor charges of criminal possession of a controlledsubstance in the seventh degree. While defendant was certainly entitled to representationon those charges, defendant had [*4]previously beenconvicted of a felony drug offense and faced felony charges of criminal sale of acontrolled substance in the third degree and criminal possession of a controlled substancein the third degree. Given the vastly disparate potential outcomes related to the felonyand misdemeanor offenses with which defendant was charged, particularly in light of hisprior felony drug conviction (compare Penal Law § 70.15with Penal Law § 70.70 [1] [b]; [3] [b] [i]), and absent any proofthat counsel's failure was greater than that of failing to properly attend to themisdemeanor charges, we do not find that defendant was deprived of meaningfulrepresentation (compare Peoplev Smith, 30 AD3d 693, 694 [2006]). Defendant's remaining contentions as toineffective assistance of counsel do not warrant any different result, as he has notestablished the absence of "strategic or other legitimate explanations" for those allegederrors (People v Duffy, 119AD3d 1231, 1234 [2014], lv denied 24 NY3d 1043 [2014]; see People v Wimberly, 86AD3d 806, 808 [2011], lv denied 18 NY3d 863 [2011]).
Additionally, as defendant fails to even allege that the potential conflict arising fromdefense counsel's simultaneous representation of a third party in an unrelated matter"affected, or operated on, or [bore] a substantial relation to the conduct of the defense" inthis case, we find his argument in this regard to be unavailing (People v Sanchez, 21 NY3d216, 223 [2013]; see Peoplev Watson, 115 AD3d 687, 689 [2014], lv denied 23 NY3d 1069 [2014]).Finally defendant's sentence is not harsh or excessive given his criminal history and thefact that the sentence is less than the maximum authorized (see Penal Law§ 70.70 [1] [b]; [3] [b] [i]; People v Bailey, 295 AD2d at 635).
Defendant's remaining arguments are without merit.
Lahtinen, J.P., Rose and Clark, JJ., concur. Ordered that the judgment is modified,on the law, by reversing defendant's convictions of criminal possession of a controlledsubstance in the seventh degree under counts three and six of the indictment; said countsdismissed and the sentences imposed thereon vacated; and, as so modified, affirmed.