| People v Gaston |
| 2016 NY Slip Op 00305 [135 AD3d 575] |
| January 19, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Luis Gaston, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Leeof counsel), and Jones Day, New York (Laura Jean Eichten of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Natalia Bedoya-McGinn ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered October26, 2011, convicting defendant, after a jury trial, of criminal sale of a controlledsubstance in the third degree, and sentencing him, as a second felony drug offenderpreviously convicted of a violent felony, to a term of 7
The verdict, which rejected defendant's agency defense, was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing thejury's credibility determinations. Even under the version of the facts reflected indefendant's testimony, the evidence supports the conclusion that the heroin defendantreceived was not an "incidental benefit" for performing a "favor" (People v Lam LekChong, 45 NY2d 64, 75 [1978], cert denied 439 US 935 [1978]), but wasdefendant's primary motivation for obtaining heroin for the undercover purchaser (see e.g. People v Abdallah, 112AD3d 415 [1st Dept 2013], lv denied 22 NY3d 1086 [2014]; People v Sanchez, 35 AD3d161 [1st Dept 2006], lv denied 8 NY3d 949 [2007]).
Defendant was not prejudiced by a remark in the prosecutor's opening statement thatallegedly asserted a theory that was at variance with the indictment. Even assuming,without deciding, the existence of such a variance, it did not deprive defendant of a fairtrial. Although defendant asserts that the allegedly improper theory "pervaded" the case,we conclude that the trial evidence, the prosecutor's summation, the court's charge, andthe jury's verdict were all consistent with the theory of the indictment as defendantinterprets it (see People v Davis, 256 AD2d 200, 201-202 [1st Dept 1998], lvdenied 93 NY2d 898 [1999]).
Defendant was not deprived of a fair trial by the People's summation. The prosecutordid not shift the burden of proof by commenting on the lack of evidence to corroboratedefendant's testimony (see e.g.People v Williams, 103 AD3d 442 [1st Dept 2013], lv denied 21 NY3d915 [2013]). The other remarks at issue were fair comments on the evidence andappropriate responses to the defense summation (see People v Overlee, 236AD2d 133 [1st Dept 1997], lv denied 91 NY2d 976 [1998]).Concur—Tom, J.P., Friedman, Saxe and Kapnick, JJ.