| People v Figueroa |
| 2018 NY Slip Op 08372 [167 AD3d 1073] |
| December 6, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Rafael Figueroa, Appellant. |
Teresa C. Mulliken, Harpersfield, for appellant.
John L. Hubbard, District Attorney, Delhi (Sean T. Becker of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Delaware County (Burns, J.),rendered April 15, 2016, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree (three counts).
In December 2014, after the Delaware County Sheriff's Department conducted three separatecontrolled buy operations involving a confidential informant (hereinafter CI), defendant wascharged by indictment with three counts of criminal sale of a controlled substance in the thirddegree. Following a jury trial, defendant was convicted as charged and he was later sentenced, asa second felony offender, to three consecutive prison terms of three years, followed by threeyears of postrelease supervision. Defendant now appeals, and we affirm.
Defendant argues that County Court erred in denying his request to charge the jury with theaffirmative defense of entrapment. To establish entitlement to an entrapment defense jury charge,a defendant must establish that the trial evidence reasonably and sufficiently supports theinference that he or she was actively "induced or encouraged" to commit the offense "by a publicservant, or by a person acting in cooperation with a public servant," and that such inducement orencouragement created "a substantial risk that the offense would be committed by a [defendantwho was] not otherwise disposed to commit it" (Penal Law § 40.05; see Peoplev Brown, 82 NY2d 869, 870-871 [1993]; People v Butts, 72 NY2d 746, 750 [1988];People v Hunt, 50 AD3d 1246,1248 [2008], lv denied 11 NY3d 789 [2008]). In determining whether the entrapmentdefense jury charge is warranted, a trial court must consider the evidence in the light mostfavorable to the defendant (see People v Brown, 82 NY2d at 870-871; People vButts, 72 NY2d at 750).
Viewed most favorably to defendant, there is no reasonable view of the evidence thatsupports defendant's asserted entitlement to the entrapment defense jury charge. Defendant didnot testify on his own behalf or present any witnesses, and the evidence presented by the Peopledoes not support the inference that defendant was actively induced or encouraged by lawenforcement, or its agent, to sell cocaine on three occasions to the CI, defendant's longtimeacquaintance (see People v Blunt,110 AD3d 635, 635-636 [2013], lv denied 22 NY3d 1087 [2014]; People vSmyth, 233 AD2d 746, 747 [1996], lv denied 89 NY2d 1015 [1997]). Rather, lawenforcement's facilitation of the controlled buy operations through the use of a CI merelyafforded defendant the "opportunit[ies] to commit [the] offense[s]," conduct which is insufficientto constitute entrapment (Penal Law § 40.05; see People v Brown, 82 NY2dat 872; People v Mazarigos, 76AD3d 533, 534 [2010]; People v Delaney, 309 AD2d 968, 970 [2003]). Contrary todefendant's assertions, the evidence establishing that he arrived late to the second and thirdprearranged buys after he received several text messages from the CI does not, without more,constitute active encouragement or inducement (see Penal Law § 40.05).Moreover, there was no evidence presented at trial that could support the conclusion thatdefendant was not predisposed to commit the crime of criminal sale of a controlled substance inthe third degree (see People v Minckler, 265 AD2d 799, 799 [1999], lv denied 94NY2d 882 [2000]; People v Carrillo, 191 AD2d 812, 814 [1993], lv denied 81NY2d 1070 [1993]). Accordingly, as there was no reasonable view of the evidence under which ajury could have found that the statutory requirements were satisfied, County Court properlydenied defendant's request to charge the affirmative defense of entrapment (see People vBrown, 82 NY2d at 871-872; People v Butts, 72 NY2d at 750-751; People vMinckler, 265 AD2d at 799).
We further reject defendant's contention that his sentence is harsh and excessive. Initially, theimposition of three consecutive prison sentences was legally permissible, as the drug salesconstituted three distinct criminal transactions taking place on three separate days in November2014 (see People v Darby, 72 AD3d1280, 1284 [2010], lv denied 15 NY3d 749 [2010]; People v Davis, 267AD2d 597, 598 [1999]). In addition, given defendant's criminal history, which includes severalprior convictions in New York and New Jersey, we discern no extraordinary circumstances orabuse of discretion that would warrant a modification of defendant's sentence (see People v Taylor, 126 AD3d1120, 1121-1122 [2015], lv denied 25 NY3d 1172 [2015], cert denied 577US &mdash, 136 S Ct 1172 [2016]; People v Darby, 72 AD3d at 1284). Finally, therecord is devoid of any evidence supporting defendant's claim that the sentence was vindictive orimposed as punishment for rejecting a plea offer and exercising his right to a trial (see People v Arce-Santiago, 154 AD3d1172, 1175 [2017], lv denied 30 NY3d 1113 [2018]; People v Griffin, 122 AD3d 1068,1071 [2014], lv denied 25 NY3d 1164 [2015]; People v Mercado, 113 AD3d 930, 934 [2014], lv denied 23NY3d 1040 [2014]). Thus, we will not disturb defendant's sentence.
McCarthy, J.P., Egan Jr., Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.