Opinion
108875
12-06-2018
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.
Teresa C. Mulliken, Harpersfield, for appellant.
John L. Hubbard, District Attorney, Delhi (Sean T. Becker of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
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 a controlled substance in the third degree (three counts).
In December 2014, after the Delaware County Sheriff's Department conducted three separate controlled buy operations involving a confidential informant (hereinafter CI), defendant was charged by indictment with three counts of criminal sale of a controlled substance in the third degree. Following a jury trial, defendant was convicted as charged and he was later sentenced, as a second felony offender, to three consecutive prison terms of three years, followed by three years of postrelease supervision. Defendant now appeals, and we affirm.
Defendant argues that County Court erred in denying his request to charge the jury with the affirmative defense of entrapment. To establish entitlement to an entrapment defense jury charge, a defendant must establish that the trial evidence reasonably and sufficiently supports the inference that he or she was actively "induced or encouraged" to commit the offense "by a public servant, or by a person acting in cooperation with a public servant," and that such inducement or encouragement created "a substantial risk that the offense would be committed by a [defendant who was] not otherwise disposed to commit it" ( Penal Law § 40.05 ; see People v. Brown, 82 N.Y.2d 869, 870–871, 609 N.Y.S.2d 164, 631 N.E.2d 106 [1993] ; People v. Butts, 72 N.Y.2d 746, 750, 536 N.Y.S.2d 730, 533 N.E.2d 660 [1988] ; People v. Hunt, 50 A.D.3d 1246, 1248, 855 N.Y.S.2d 736 [2008], lv denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 [2008] ). In determining whether the entrapment defense jury charge is warranted, a trial court must consider the evidence in the light most favorable to the defendant (see People v. Brown, 82 N.Y.2d at 870–871, 609 N.Y.S.2d 164, 631 N.E.2d 106 ; People v. Butts, 72 N.Y.2d at 750, 536 N.Y.S.2d 730, 533 N.E.2d 660 ).
Viewed most favorably to defendant, there is no reasonable view of the evidence that supports defendant's asserted entitlement to the entrapment defense jury charge. Defendant did not testify on his own behalf or present any witnesses, and the evidence presented by the People does not support the inference that defendant was actively induced or encouraged by law enforcement, or its agent, to sell cocaine on three occasions to the CI, defendant's longtime acquaintance (see People v. Blunt, 110 A.D.3d 635, 635–636, 973 N.Y.S.2d 641 [2013], lv denied 22 NY3d 1087, 981 N.Y.S.2d 672, 4 N.E.3d 974 [2014] ; People v. Smyth, 233 A.D.2d 746, 747, 650 N.Y.S.2d 821 [1996], lv denied 89 N.Y.2d 1015, 658 N.Y.S.2d 254, 680 N.E.2d 628 [1997] ). Rather, law enforcement's facilitation of the controlled buy operations through the use of a CI merely afforded defendant the "opportunit[ies] to commit [the] offense[s]," conduct which is insufficient to constitute entrapment ( Penal Law § 40.05 ; see People v. Brown, 82 N.Y.2d at 872, 609 N.Y.S.2d 164, 631 N.E.2d 106 ; People v. Mazarigos, 76 A.D.3d 533, 534, 907 N.Y.S.2d 496 [2010] ; People v. Delaney, 309 A.D.2d 968, 970, 765 N.Y.S.2d 696 [2003] ). Contrary to defendant's assertions, the evidence establishing that he arrived late to the second and third prearranged 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 that defendant was not predisposed to commit the crime of criminal sale of a controlled substance in the third degree (see People v. Minckler, 265 A.D.2d 799, 799, 695 N.Y.S.2d 843 [1999], lvs denied 94 N.Y.2d 882, 883, 705 N.Y.S.2d 14, 726 N.E.2d 491 [2000] ; People v. Carrillo, 191 A.D.2d 812, 814, 594 N.Y.S.2d 902 [1993], lv denied 81 N.Y.2d 1070, 601 N.Y.S.2d 590, 619 N.E.2d 668 [1993] ). Accordingly, as there was no reasonable view of the evidence under which a jury could have found that the statutory requirements were satisfied, County Court properly denied defendant's request to charge the affirmative defense of entrapment (see People v. Brown, 82 N.Y.2d at 871–872, 609 N.Y.S.2d 164, 631 N.E.2d 106 ; People v. Butts, 72 N.Y.2d at 750–751, 536 N.Y.S.2d 730, 533 N.E.2d 660 ; People v. Minckler, 265 A.D.2d at 799, 695 N.Y.S.2d 843 ).
We further reject defendant's contention that his sentence is harsh and excessive. Initially, the imposition of three consecutive prison sentences was legally permissible, as the drug sales constituted three distinct criminal transactions taking place on three separate days in November 2014 (see People v. Darby, 72 A.D.3d 1280, 1284, 897 N.Y.S.2d 795 [2010], lvs denied 15 N.Y.3d 749, 906 N.Y.S.2d 821, 933 N.E.2d 220 [2010]; People v. Davis, 267 A.D.2d 597, 598, 701 N.Y.S.2d 130 [1999] ). In addition, given defendant's criminal history, which includes several prior convictions in New York and New Jersey, we discern no extraordinary circumstances or abuse of discretion that would warrant a modification of defendant's sentence (see People v. Taylor, 126 A.D.3d 1120, 1121–1122, 4 N.Y.S.3d 743 [2015], lv denied 25 N.Y.3d 1172, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015], cert denied ––– U.S. ––––, 136 S.Ct. 1172, 194 L.Ed.2d 193 [2016] ; People v. Darby, 72 A.D.3d at 1284, 897 N.Y.S.2d 795 ). Finally, the record is devoid of any evidence supporting defendant's claim that the sentence was vindictive or imposed as punishment for rejecting a plea offer and exercising his right to a trial (see People v. Arce–Santiago, 154 A.D.3d 1172, 1175, 63 N.Y.S.3d 140 [2017], lv denied 30 N.Y.3d 1113, 77 N.Y.S.3d 338, 101 N.E.3d 979 [2018] ; People v. Griffin, 122 A.D.3d 1068, 1071, 996 N.Y.S.2d 766 [2014], lv denied 25 N.Y.3d 1164, 15 N.Y.S.3d 296, 36 N.E.3d 99 [2015] ; People v. Mercado, 113 A.D.3d 930, 934, 978 N.Y.S.2d 449 [2014], lv denied 23 N.Y.3d 1040, 993 N.Y.S.2d 253, 17 N.E.3d 508 [2014] ). Thus, we will not disturb defendant's sentence.
McCarthy, J.P., Egan Jr., Devine and Aarons, JJ., concur.
ORDERED that the judgment is affirmed.