| People v Peterkin |
| 2016 NY Slip Op 00404 [135 AD3d 1192] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAnthony J. Peterkin, Sr., Appellant. |
Susan Patnode, Rural Law Center of New York, Albany (Cynthia Feathers ofcounsel), for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered August 28, 2014, upon a verdict convicting defendant of thecrimes of criminal sale of a controlled substance in the third degree and criminalpossession of a controlled substance in the third degree.
Defendant was indicted for criminal sale of a controlled substance in the third degreeand criminal possession of a controlled substance in the third degree stemming from hissale of crack cocaine to a confidential informant (hereinafter CI) during a controlled buy.Following a jury trial, at which defendant testified in support of his agency defense,defendant was convicted as charged and sentenced as a second felony offender toconcurrent 10-year prison terms. He appeals.
Defendant contends that the verdict is not supported by legally sufficient evidenceand is against the weight of the evidence, specifically claiming that the People failed todisprove his agency defense beyond a reasonable doubt. His challenge to the legalsufficiency of the evidence is unpreserved for our review inasmuch as he presentedevidence after his unsuccessful motion to dismiss and failed to renew that motion at theclose of all proof (see People vLane, 7 NY3d 888, 889 [2006]; People v Robinson, 123 AD3d 1224, 1225 [2014], lvdenied 25 NY3d 993 [2015]). Nevertheless, we necessarily determine whether theagency defense was disproven in the context of our weight of the evidence review (see People v Danielson, 9NY3d 342, 348 [2007]; People v Robinson, 123 AD3d at 1225; People v Vanderhorst, 117AD3d 1197, 1198 [2014], lv denied 24 NY3d 1089 [2014]).
[*2] "Under the agency doctrine, 'a person who acts solelyas the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug tothe buyer, or of possessing it with intent to sell it to the buyer' " (People v Kramer, 118 AD3d1040, 1041 [2014], quoting People v Watson, 20 NY3d 182, 185 [2012] [internalquotation marks and citation omitted]; see People v Echevarria, 21 NY3d 1, 20 [2013])."[W]hether the defendant was a seller, 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 64, 74 [1978], cert denied 439US 935 [1978]; see People vVanguilder, 130 AD3d 1247, 1248-1249 [2015]; People v Nowlan, 130 AD3d1146, 1147 [2015]). The jury may consider a number of factors in assessing whetherthe defendant acted solely to accommodate the buyer, including "the nature and extent ofthe relationship between the defendant and the buyer, whether it was the buyer or thedefendant who suggested the purchase, whether the defendant has had other drugdealings with this or other buyers or sellers and, of course, whether the defendantprofited, or stood to profit, from the transaction" (People v Watson, 20 NY3d at186 [internal quotation marks and citation omitted]; accord People v Robinson,123 AD3d at 1226; see People v Kramer, 118 AD3d at 1041-1042).
The trial evidence established that the police arranged for a controlled buy at a homein the City of Ogdensburg, St. Lawrence County that had previously been identified bythe CI as a location where drugs were being sold. Once there, the CI encountered one ofthe owners of the home and asked him "if there's anything going on," which she intendedas a drug reference. This individual responded affirmatively and pointed to defendant,whom the CI recognized from previous visits to the subject home during which the twosmoked crack together. The CI then handed defendant the buy money, and defendantproceeded up a set of stairs to an upper story of the home. When he returned, defendanthanded the CI a bag containing a white substance that later tested positive for cocaine.Defendant admitted that he procured the crack cocaine for the CI on the day in question,but claimed that he did so as a favor to the CI and that he neither controlled the drugs norprofited from the transaction. Defendant explained that after the CI asked him, directly,to get her "some stuff," he went to the upstairs portion of the home where he surrenderedthe money to a "guy" in exchange for the crack cocaine that he then delivered to the CI.Defendant's account of the subject transaction presented a credibility issue for the jury toresolve (see People v Robinson, 123 AD3d at 1226-1227). While a differentresult would not have been unreasonable, upon evaluating the evidence in a neutral lightand deferring to the jury's credibility assessments, we do not find the verdict to becontrary to the weight of the evidence (see id. at 1227; People v Johnson, 91 AD3d1115, 1116-1117 [2012], lv denied 18 NY3d 959 [2012]; People v Guthrie, 57 AD3d1168, 1170 [2008], lv denied 12 NY3d 816 [2009]; People v Delaney, 42 AD3d820, 821 [2007], lv denied 9 NY3d 922 [2007]; People v Sheppard,273 AD2d 498, 499 [2000], lv denied 95 NY2d 908 [2000]).
Lahtinen, Garry, Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.