| People v Fraser |
| 2015 NY Slip Op 08856 [134 AD3d 734] |
| December 2, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Reginald Fraser, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Iliou, J.), rendered October 2, 2013, convicting him of criminal possession of acontrolled substance in the third degree (three counts) and criminal sale of a controlledsubstance in the first degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish hisguilt is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492-493 [2008]). In any event, viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt.Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]),we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). The issue of whether the affirmative defense of entrapment wasestablished was an issue of fact for the jury (see People v McGee, 49 NY2d 48,61 [1979]; People vGordon, 72 AD3d 841, 842 [2010]; People v Wicht, 48 AD3d 491 [2008]; People vCastro, 299 AD2d 557, 558 [2002]). Here, the evidence presented at trial, whichincluded recorded conversations between the defendant and an undercover officer,supported the jury's rejection of the affirmative defense of entrapment (see People v Jones, 114 AD3d1239, 1240 [2014]; People v Gordon, 72 AD3d at 842; People vKubasek, 167 AD2d 424 [1990]).
The defendant's contention that the verdict was repugnant is unpreserved forappellate review (see People v Alfaro, 66 NY2d 985, 987 [1985]; People vSatloff, 56 NY2d 745, 746 [1982]). In any event, this contention is without merit (see People v DeLee, 24 NY3d603, 608 [2014]; People v White, 172 AD2d 790 [1991]; People vGonzalez, 156 AD2d 711, 712 [1989]).
The County Court correctly denied the defendant's request to instruct the jury on theaffirmative defense of duress (see Penal Law § 40.00). Viewing theevidence in the light most favorable to the defendant, no reasonable view of the evidencesupported charging the jury with this affirmative defense (see People v Butts, 72NY2d 746, 750 [1988]; People v Watts, 57 NY2d 299, 301 [1982]). Contrary tothe defendant's contention, no reasonable view of the evidence supported a finding that[*2]he was subjected to "the use or threatened imminentuse of unlawful physical force upon him" (Penal Law § 40.00 [1]; see People v Morson, 42 AD3d505, 506 [2007]; People v Hai Guang Zheng, 268 AD2d 443, 444 [2000];People v Brown, 68 AD2d 503, 512-513 [1979]). In addition, the court properlydenied the defendant's request for an agency charge, as there was no reasonable view ofthe evidence to support the theory that he was acting solely on behalf of the buyer, anundercover officer, in the drug transactions at issue here (see People v Herring,83 NY2d 780, 782-783 [1994]; People v Shodunke, 12 AD3d 466 [2004]; People vJohnson, 249 AD2d 417, 418 [1998]).
The County Court erred, however, in denying the defendant's request for a missingwitness charge. In opposition to the defendant's prima facie showing that the uncalledwitness could have been expected to testify favorably to the People, that he wasknowledgeable about a material issue in the case, and that he was in the People's control(see People v Edwards, 14NY3d 733, 735 [2010]; People v Savinon, 100 NY2d 192, 200 [2003];People v Gonzalez, 68 NY2d 424, 427-429 [1986]), the People failed to "accountfor the witness'[s] absence or otherwise demonstrate that the charge would not beappropriate" (People v Gonzalez, 68 NY2d at 428). Nevertheless, the error washarmless, as there was overwhelming evidence of the defendant's guilt and no significantprobability that the error contributed to his conviction (see People v Wofford, 115AD3d 1332, 1333 [2014]; People v McCune, 210 AD2d 978, 979 [1994];see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
The defendant's contention concerning an alleged Brady violation (seeBrady v Maryland, 373 US 83 [1963]) is unpreserved for appellate review and, inany event, without merit.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Rivera, J.P., Dickerson, Miller and Maltese, JJ., concur.