| People v Gallo |
| 2016 NY Slip Op 00064 [135 AD3d 982] |
| January 7, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Appellant, vForrest F. Gallo, Respondent. |
Stephen K. Cornwell Jr., District Attorney, Binghamton (Kristen L. Grabowski ofcounsel), for appellant.
Torrance L. Schmitz, Vestal, for respondent.
Egan Jr., J. Appeal from an order of the County Court of Broome County (Smith, J.),entered May 12, 2014, which granted defendant's motion to dismiss the indictment.
In May 2013, defendant was indicted and charged with one count of criminal sale ofmarihuana in the second degree. The charge stemmed from an incident that occurred inDecember 2012 when defendant, then a 16-year-old high school student, procured whathe described as an approximately one-half gram bag of marihuana for a fellow14-year-old student. In August 2013, defense counsel filed an omnibus motion seeking,among other things, to dismiss the indictment pursuant to CPL 210.30, contending thatthe evidence before the grand jury was legally insufficient to sustain the charged crime.After reviewing the grand jury minutes, County Court (Lehmann, J.) denied defendant'smotion to dismiss the indictment.
Defendant waived his right to a jury trial and, when the parties appeared beforeCounty Court (Smith, J.) in May 2014 for the scheduled bench trial,[FN*] defense counsel raisedthe issue of the People's failure to instruct the grand jury as to an agency defense. CountyCourt asked defense counsel to submit a formal motion and, following receipt of theparties' respective [*2]submissions, County Court granteddefendant's motion and dismissed the indictment as defective within the meaning of CPL210.35 (5)—with leave for the People to re-present the matter to another grandjury within 30 days. This appeal by the People ensued.
The People initially contend that County Court erred in reinspecting the grand juryminutes to determine whether, due to the People's failure to instruct the grand jury as tothe defense of agency, the underlying proceeding was defective—contending thatJudge Lehmann's initial ruling as to the sufficiency of the grand jury proceedingsconstituted the law of the case. We disagree. Although this "judicially crafted policy" isapplicable to criminal matters (People v Evans, 94 NY2d 499, 503-504 [2000]),we find that its application is not warranted here. Defendant's omnibus motion indeedrequested, among other things, that Judge Lehmann review the instructions given to thegrand jury "as potentially being misleading and inconsistent with the law." However, thecrux of defendant's initial motion—brought pursuant to CPL 210.30(3)—was addressed to the legal sufficiency of the evidence before the grand jury.Defendant's subsequent motion relative to the People's failure to charge the grand jury asto an agency defense—brought pursuant to CPL 210.35 (5)—contendedthat the grand jury proceeding itself was defective for "fail[ing] to conform to therequirements of [CPL article 190] to such degree that the integrity thereof [was] impairedand prejudice to the defendant may [have] result[ed]" (CPL 210.35 [5]). Given thatdefendant's respective motions were brought pursuant to—and ultimately resolvedunder—decidedly different statutes, we do not find that County Court abused itsdiscretion in declining to apply the law of the case doctrine to this matter.
Turning to the merits, while there is no requirement that the grand jury "be chargedwith every potential defense suggested by the evidence" (People v Valles, 62NY2d 36, 38 [1984]), the People "must charge . . . those defenses that theevidence will reasonably support" (People v Coleman, 4 AD3d 677, 678 [2004], lvsdenied 2 NY3d 797 [2004], 3 NY3d 672 [2004]; accord People v Angona, 119 AD3d 1406, 1407 [2014],lv denied 25 NY3d 987 [2015]). As this Court recently reiterated, "[u]nder theagency doctrine, a person who acts solely as the agent of a buyer in procuring drugs forthe buyer is not guilty of selling the drug to the buyer, or of possessing it with intent tosell it to the buyer. Whether the defendant was a seller, or merely a purchaser doing afavor for a friend, is generally a factual question [to be resolved] . . . basedupon [considerations of] factors such as the relationship between the buyer and thedefendant, who initiated the transaction, whether the defendant had previously engagedin drug transfers and whether he or she profited from the sale" (People v Kramer, 118 AD3d1040, 1041-1042 [2014] [internal quotation marks, brackets and citationsomitted]).
Here, the testimony before the grand jury revealed that the buyer—havingbeen told by her stepbrother that it "was cool to try" marihuana—asked a friendwhere she could make such a purchase; the friend, in turn, pointed to defendant, the latterof whom apparently "was kind of friends" with the buyer's stepbrother. The buyer thenapproached defendant, gave him $10 to buy marihuana and was told to "come pick it upfifth period." When asked by the Assistant District Attorney how she knew to providethis specific sum of money, the buyer replied, "My [step]brother just said, get $10." Thebuyer and her stepbrother thereafter met defendant to retrieve the drugs. Because thebuyer did not know how to do "a handoff," her stepbrother and defendant "did some likeweird handshake thing," following which the buyer's stepbrother handed the drugs to thebuyer. In addition to the buyer's testimony, the grand jury reviewed defendant's writtenstatement, wherein defendant admitted that he was approached by the buyer and, at herrequest, procured marihuana "and gave it to her after fifth period." As to the amount ofmoney that he received from the buyer, defendant indicated in his written statement thatthe buyer gave him $11 and that he, in turn, paid $10 for the marihuana. However, thebuyer testified that she gave defendant $10 to purchase marihuana, and the assistantprincipal who [*3]questioned defendant following theunderlying transaction testified that defendant told her that he was given $10 by thebuyer in order to purchase marihuana. No further inquiry was made regarding theapparent inconsistency between defendant's written statement and the testimony beforethe grand jury on this point.
Upon reviewing the record, we agree with County Court that the evidence before thegrand jury reasonably supported the defense of agency; hence, the People's failure toinstruct the grand jury in this regard rendered that proceedingdefective—particularly in view of the fact that the People were on notice of thispotential defense prior to the commencement thereof. There is no question that it was thebuyer who initiated the sale and, given the relationship between defendant and thebuyer's stepbrother, the evidence reasonably suggested that defendant was doing a favorfor the stepsister of one of his friends. Additionally, none of the testimony offered beforethe grand jury revealed that defendant had a prior history of drug sales, and the evidencethat defendant profited from the subject transaction was tenuous at best. Under thesecircumstances, County Court properly granted defendant's motion to dismiss theindictment under CPL 210.35 (5) (compare People v Coleman, 4 AD3d at 678;People v Walker, 265 AD2d 835, 835-836 [1999], lv denied 94 NY2d831 [1999]; People v Ortiz, 188 AD2d 389, 390 [1992], lv denied 81NY2d 1017 [1993]).
Lahtinen, J.P., McCarthy, Lynch and Devine, JJ., concur. Ordered that the order isaffirmed.
Footnote *:This matter wastransferred to Judge Smith following Judge Lehmann's retirement.