| People v Bickham |
| 2020 NY Slip Op 08128 [189 AD3d 1972] |
| December 31, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Willis S. Bickham Jr., Appellant. |
Dennis J. Lamb, Troy, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered October 17, 2018, convicting defendant following a nonjury trial of the crime ofcriminal sale of a controlled substance in the third degree (two counts).
Defendant was charged by indictment with two counts each of criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in the thirddegree, stemming from controlled buys of heroin that occurred on two consecutive days. Toresolve defendant's pretrial omnibus motion, County Court reviewed the grand jury minutes anddismissed the two counts charging criminal possession of a controlled substance in the thirddegree, finding that the People incorrectly instructed the grand jury that the agency defense didnot apply to the possession counts. Following a bench trial, defendant was convicted of bothcounts of criminal sale of a controlled substance in the third degree. After denying defendant'sCPL 330.30 motion to set aside the guilty verdict, the court sentenced him, as a second felonydrug offender, to concurrent prison terms of five years, followed by three years of postreleasesupervision. Defendant appeals.
The verdict is not against the weight of the evidence. "A weight of the evidence reviewrequires this Court to first determine whether, based on all the credible evidence, a differentfinding would not have been unreasonable" (People v Forney, 183 AD3d 1113, 1113-1114 [2020] [internalquotation marks and citations omitted], lv denied 35 NY3d 1065 [2020]; see People v Benjamin, 183 AD3d1125, 1126 [2020]). Where a different verdict would not have been unreasonable, this Courtmust "view the evidence in a neutral light and weigh the conflicting testimony, assess the rationalinferences to be drawn from that testimony and determine whether the [trier of fact] was justifiedin finding that the elements of the crime were proven beyond a reasonable doubt" (People v Cole, 177 AD3d 1096,1097 [2019], lv denied 34 NY3d 1015 [2019]; see People v Callahan, 186 AD3d 943, 943-944 [2020]). In makingthis assessment, we give great deference to the factfinder's credibility assessments, based on thefactfinder's "opportunity to view the witnesses, hear the testimony and observe demeanor"(People v Cole, 177 AD3d at 1097 [internal quotation marks and citation omitted];see People v Benjamin, 183 AD3d at 1126).
As relevant here, to convict defendant of criminal sale of a controlled substance in the thirddegree, the People were required to establish that he knowingly and unlawfully sold a narcoticdrug (see Penal Law § 220.39 [1]). Where a defendant raises an agencydefense, the People must prove that the defendant did not act "solely as the agent of a buyer" (People v Watson, 20 NY3d 182,185 [2012] [internal quotation marks and citation omitted]; accord People v Vickers, 168 AD3d 1268, 1269 [2019], lvdenied 33 NY3d 1036 [2019]). Under the agency doctrine[*2], "a person who acts solely as the agent of a buyer in procuringdrugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent tosell it to the buyer" (People v Watson, 20 NY3d at 185 [internal quotation marks andcitation omitted]; accord People vKramer, 118 AD3d 1040, 1041 [2014]; People v Vickers, 168 AD3d at1270).
"[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, isgenerally a factual question for the [trier of fact] to resolve on the circumstances of the particularcase" (People v Lam Lek Chong, 45 NY2d 64, 74 [1978], cert denied 439 US 935[1978]; accord People v Kramer, 118 AD3d at 1041), including factors such as "thenature and extent of the relationship between the defendant and the buyer, whether it was thebuyer or the defendant who suggested the purchase, whether the defendant has had other drugdealings with this or other buyers or sellers and, of course, whether the defendant profited, orstood to profit, from the transaction" (People v Watson, 20 NY3d at 186 [internalquotation marks and citation omitted]; accord People v Peterkin, 135 AD3d 1192, 1192-1193 [2016]; see People v Gallo, 135 AD3d982, 984 [2016]). "Notably, profit need not be pecuniary and includes transactions in whicha defendant stands to benefit from the underlying sale in other ways, including getting cheaper orfree drugs for himself or herself" (People v Vickers, 168 AD3d at 1272 [internalquotation marks, brackets and citation omitted]; see People v Robinson, 123 AD3d 1224, 1226 [2014], lvdenied 25 NY3d 992 [2015]).
County Court heard testimony from an undercover officer who twice gave money todefendant and received heroin from him, another officer who observed the transactions from adistance and defendant himself. A video and audio recording of each transaction was admittedinto evidence and the parties stipulated to admission of documents establishing that the substanceexchanged was heroin. In his testimony, defendant admitted that he engaged in text messageconversations with the undercover officer, they met in person, and on two different days theofficer gave defendant money, defendant left for a short period of time, then he returned andhanded the officer heroin. Therefore, the only question is whether the agency defenseapplies.
The officer and defendant had no prior relationship; they were introduced by an informantone day prior to the first recorded transaction involving the officer, at the time of a transaction inwhich defendant provided drugs to the informant. Defendant testified that he is not a drug dealer,but is only an addict who would act as a runner or middleman to obtain drugs for others in hopesthat they, in appreciation of the favor, would give him a portion of the drugs for his own use.Although he did not demand or ask for part of the drugs, his hope or expectation of something inreturn for his efforts may, alone, be sufficient to defeat [*3]theagency defense (see People v Vickers, 168 AD3d at 1272; People v Robinson,123 AD3d at 1226). In any event, the officer's testimony and the recordings showed thatdefendant asserted, more than once, that he owned the drugs that would be given to the officer.Defendant did not deny having made such statements, but testified that he lied to the officerabout his ownership of the drugs because he was trying to prevent the officer from seeking othersources of drugs, and that addicts will say anything to get high. Although a different result wouldnot have been unreasonable, when the proof is viewed as a whole, and accepting County Court'scredibility assessments that necessarily favored the People's witnesses, the record establishes thatthe court's rejection of the agency defense—and, thus, its determination that defendantacted as a seller, rather than an agent of the buyer—is not against the weight of theevidence (see People v Peterkin, 135 AD3d at 1193; People v Johnson, 91 AD3d 1115, 1117 [2012], lv denied18 NY3d 959 [2012]).
County Court did not err in partially denying defendant's motion to dismiss the indictmentbased upon the grand jury instructions. A review of the grand jury minutes reveals that the Peopleinstructed the grand jury on the agency defense in connection with the two sale counts.Defendant's contention that the People failed to charge the grand jury with a lesser includedoffense is unpreserved, as he did not raise that argument in his pretrial motion (see People vSheltray, 244 AD2d 854, 854 [1997], lv denied 91 NY2d 897 [1998]; see generally People v Coleman, 4AD3d 677, 678 [2004], lv denied 2 NY3d 797 [2004]).
Defendant also did not preserve his argument concerning County Court's Sandovalruling. When defendant's testimony raised the agency defense, the People moved to reopen theSandoval hearing to permit them to introduce evidence of defendant's prior drug-relatedconvictions. Inasmuch as defendant limited his objections to the remoteness of those convictions,he failed to preserve his present argument that the prejudicial effect of those convictionsoutweighed their probative value (seePeople v Abrams, 73 AD3d 1225, 1227 [2010], affd 17 NY3d 760 [2011]; see also People v Quintana, 159 AD3d1122, 1127-1128 [2018], lv denied 31 NY3d 1086 [2018]). In any event, courts oftenpermit evidence of prior crimes related to drug activity to rebut the agency defense and establishthe defendant's intent to sell (see e.g.People v Sidberry, 159 AD3d 486, 487 [2018], lv denied 31 NY3d 1087 [2018];People v Nowlan, 130 AD3d1146, 1146 [2015]; People vLee, 129 AD3d 1295, 1297-1298 [2015], lv denied 27 NY3d 1001 [2016]; People v Poole, 79 AD3d 1685,1687 [2010], lv denied 16 NY3d 862 [2011]; People v Deale, 26 AD3d 175, 176 [2006], lv denied 6NY3d 893 [2006]; People v Lauderdale, 243 AD2d 760, 761 [1997], lv denied 91NY2d 875 [1997]; see also People vValentin, 29 NY3d 150, 156 [2017]), and the risk of prejudice [*4]was reduced in this bench trial, because the court is less likely thana jury to infer propensity from a defendant's prior criminal history.
County Court did not err in denying defendant's CPL article 330 motion to set aside theverdict, which was based on the court's failure to order a mental health examination. CPL 330.30(1) provides that, "[a]t any time after rendition of a verdict of guilty and before sentence, thecourt may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon. . . [a]ny ground appearing in the record which, if raised upon an appeal from aprospective judgment of conviction, would require a reversal or modification of the judgment asa matter of law by an appellate court." "Since a trial court lacks this Court's interest of justicejurisdiction, its power is far more limited, and it may only grant a CPL 330.30 (1) motion wherethe error alleged has been preserved by a proper objection at trial" (People v Sudol, 89 AD3d 499,499-500 [2011] [citation omitted]; seePeople v Kachadourian, 184 AD3d 1021, 1028 [2020], lv denied 35 NY3d 1113[2020]; People v Smith, 89 AD3d1126, 1131 [2011], lv denied 18 NY3d 962 [2012]). Defendant did not raise theissue of competency to stand trial in a pretrial motion or during trial, rendering the argumentunpreserved (see People v Kachadourian, 184 AD3d at 1028-1029).
To the extent that defendant is arguing that County Court should have sua sponte ordered amental health examination based on information in the record—and, thus, that nopreservation was required—we find the argument to be without merit. "[A] defendant ispresumed to be competent, and . . . is not entitled, as a matter of right, to have thequestion of his [or her] capacity to stand trial passed upon before the commencement of the trial,if the court is satisfied from the available information that there is no proper basis for questioningthe defendant's sanity" (People v Tortorici, 92 NY2d 757, 765 [1999] [internal quotationmarks and citations omitted], cert denied 528 US 834 [1999]; see CPL 730.10,730.30; People v Yu-Jen Chang, 92AD3d 1132, 1134 [2012]). "A history of mental illness and drug abuse does not in itself callinto question a defendant's competence to stand trial" (People v Duffy, 119 AD3d 1231, 1233 [2014] [internal quotationmarks, brackets and citations omitted], lv denied 24 NY3d 1043 [2014]; see People v Park, 159 AD3d1132, 1133 [2018], lv denied 31 NY3d 1085 [2018]; People v Kot, 126 AD3d 1022,1024 [2015], lv denied 25 NY3d 1203 [2015]). Further, it weighs against a finding ofincompetency to stand trial that "[a]t no time during the . . . proceeding did defensecounsel, who was in the best position to assess defendant's capacity, raise the issue of defendant'sfitness to proceed or request an examination pursuant to CPL 730.30" (People vGelikkaya, 84 NY2d 456, 460 [1994]; accord People v Park, 159 AD3d at 1134). Indenying defendant's motion, County Court [*5]noted—andthe record confirms—that, although defendant testified that he was diagnosed in 2016 withbipolar disorder and schizophrenia, he was able to answer "all questions posed to him in a cogentand understandable manner," he "had a complete recall of the events that [led] to his arrest andprosecution," and none of his three different attorneys nor defendant himself hinted at anyindication or reasonable ground to believe that he was incapable of understanding theproceedings against him or that an examination of his mental health should be conducted. Hence,the court did not abuse its discretion in denying defendant's motion.
Finally, County Court imposed prison terms that were less than half the statutory maximum(see Penal Law § 70.70 [3] [b] [i]) and ran them concurrently. Consideringdefendant's admissions to participating in the drug transactions at issue and his extensivecriminal history, the sentence is neither harsh nor excessive (see People v Gilmore, 177 AD3d 1029, 1029 [2019], lvdenied 35 NY3d 970 [2020]; Peoplev Cole, 150 AD3d 1476, 1482-1483 [2017], lv denied 31 NY3d 1146[2018]).
Garry, P.J., Lynch, Clark and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.