Opinion
2012-12-28
The PEOPLE of the State of New York, Respondent, v. Willie FISHER, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo–McLaughlin of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo–McLaughlin of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him following a jury trial of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ), criminal possession of a controlled substance in the third degree (§ 220.16[1] ), and unlawful possession of marihuana (§ 221.05), defendant contends that County Court should have granted his motion to dismiss the indictment because the prosecutor's instruction on the agency defense was so confusing as to render the grand jury proceedings defective. That contention is “not preserved for our review because defendant did not move to dismiss the indictment pursuant to CPL 210.35(5)” ( People v. Workman, 277 A.D.2d 1029, 1031, 716 N.Y.S.2d 198,lv. denied96 N.Y.2d 764, 725 N.Y.S.2d 291, 748 N.E.2d 1087;see People v. Beyor, 272 A.D.2d 929, 930, 708 N.Y.S.2d 535,lv. denied95 N.Y.2d 832, 713 N.Y.S.2d 139, 735 N.E.2d 419). In any event, defendant's contention lacks merit. Although a “defendant need not demonstrate actual prejudice under th[e] statutory scheme to prevail” ( People v. Sayavong, 83 N.Y.2d 702, 709, 613 N.Y.S.2d 343, 635 N.E.2d 1213), “ ‘dismissal of an indictment under CPL 210.35(5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimate decision reached by the [g]rand [j]ury’ ” ( People v. Sheltray, 244 A.D.2d 854, 855, 665 N.Y.S.2d 224,lv. denied91 N.Y.2d 897, 669 N.Y.S.2d 12, 691 N.E.2d 1038;see People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362). Additionally, a grand jury “need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law” and it is “sufficient if the District Attorney provides the [g]rand [j]ury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime” ( People v. Calbud, Inc., 49 N.Y.2d 389, 394–395, 426 N.Y.S.2d 238, 402 N.E.2d 1140). Here, “the prosecutor's instructions to the grand jury were ‘not so misleading or incomplete that the integrity of the proceedingswas substantially undermined’ ” ( People v. Woodring, 48 A.D.3d 1273, 1275–1276, 850 N.Y.S.2d 809,lv. denied10 N.Y.3d 846, 859 N.Y.S.2d 404, 889 N.E.2d 91).
Contrary to defendant's further contention, the court's charge on the agency defense does not require reversal. Upon our review of that charge “as a whole against the background of the evidence produced at the trial” ( People v. Andujas, 79 N.Y.2d 113, 118, 580 N.Y.S.2d 719, 588 N.E.2d 754;see People v. Waldriff, 46 A.D.3d 1448, 1448, 847 N.Y.S.2d 795,lv. denied9 N.Y.3d 1040, 852 N.Y.S.2d 25, 881 N.E.2d 1212), we conclude that “[t]he charge properly conveyed the agency defense to the jury” ( People v. Schiano, 198 A.D.2d 820, 820, 605 N.Y.S.2d 1012,lv. denied82 N.Y.2d 930, 610 N.Y.S.2d 182, 632 N.E.2d 492).
Defendant contends that the evidence is not legally sufficient to support the conviction because the People failed to disprove his agency defense beyond a reasonable doubt. That contention is not preserved for our review ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and, in any event, it lacks merit. “The determination ... whether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the jury to resolve on the circumstances of the particular case” ( People v. Lam Lek Chong, 45 N.Y.2d 64, 74, 407 N.Y.S.2d 674, 379 N.E.2d 200,cert. denied439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331;see People v. Brown, 50 A.D.3d 1596, 1597, 855 N.Y.S.2d 801). The evidence, viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), is “ ‘legally sufficient ... to establish that defendant was the seller of a controlled substance and not an agent of the buyer’ ” ( People v. Poole, 79 A.D.3d 1685, 1686, 917 N.Y.S.2d 775,lv. denied16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “It cannot be said that, in rejecting the agency defense, the jury failed to give the evidence the weight it should be accorded” ( People v. Watkins, 284 A.D.2d 905, 906, 726 N.Y.S.2d 513,lv. denied96 N.Y.2d 943, 733 N.Y.S.2d 383, 759 N.E.2d 382).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.