| People v Mahon |
| 2018 NY Slip Op 02750 [160 AD3d 563] |
| April 24, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Kalonji Mahon, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Megan D. Byrne of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered September 24,2012, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree and criminal possession of a controlled substance in the third degree, and sentencinghim, as a second felony drug offender previously convicted of a violent felony, to concurrentterms of eight years, and order (same court and Justice), entered on or about January 5, 2016,which denied defendant's CPL 440.10 motion to vacate the judgment, unanimouslyaffirmed.
Regardless of whether there was a reasonable view of the evidence supporting an agencydefense, it would have been inappropriate for the court to instruct the jury regarding that defenseafter defendant's attorney expressly opposed such a charge. A sua sponte agency charge wouldhave improperly interfered with counsel's strategy, as discussed herein (see People vDeGina, 72 NY2d 768, 776 [1988]). In any event, there was no reasonable view of theevidence to support such a charge. The totality of the evidence, including, among other things,defendant's statements during the transaction, made clear that he was not assisting the buyer inmaking a purchase, but was instead a participant in the sale as part of a drug traffickingoperation.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Althoughdefendant claims that the evidence failed to disprove an agency defense, as that instruction wasnot given to the jury, we are required to review the weight of the evidence in light of the court'scharge (see id.; People v Noble, 86 NY2d 814, 815 [1995]). Moreover, as wehave already stated, there was not even a reasonable view supporting that defense. In any event,even assuming such a reasonable view, there was ample evidence to refute any claim ofagency.
Defendant received effective assistance under the state and federal standards (see Peoplev Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668[1984]). Defendant has not shown that any of counsel's alleged deficiencies fell below anobjective standard of reasonableness, or that, viewed individually or collectively, they depriveddefendant of a fair trial or affected the outcome of the case. Counsel explained that an agencydefense would be difficult to establish without testimony from defendant, which would beundermined by defendant's contradictory grand jury testimony. Counsel also explained that anagency defense would open the door to evidence of defendant's considerable history of drugcrimes (see People v Valentin, 29NY3d 150, 155-156 [2017]). Instead, counsel pursued an objectively reasonable, althoughunsuccessful, strategy in which he indirectly presented an agency defense and argued defendantlacked the intention to make a drug sale because his true purpose was to flirt and spend time withthe undercover officer. Defendant has also failed to establish that a true agency defense had anygreater chance of success, or that counsel's choice of strategy caused him any prejudice.
We have considered and rejected defendant's remaining challenges to his attorney'sperformance, and his arguments regarding his CPL 440.10 motion.
We perceive no basis for reducing the sentence. Concur—Sweeny, J.P., Richter,Webber, Gesmer, Moulton, JJ.