Opinion
234 KA 18-02414
07-16-2021
The PEOPLE of the State of New York, Respondent, v. Shaquille O. MANNERS, Defendant-Appellant.
DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ) and criminal sale of a controlled substance in the third degree ( § 220.39 [1] ). We affirm.
Defendant contends that the verdict is against the weight of the evidence on the "intent to sell" element of criminal possession of a controlled substance in the third degree and the "sell" element of criminal sale of a controlled substance in the third degree. We reject that contention. In conducting our weight of the evidence review, we "assess[ ] the evidence in light of the elements of the crime[s] as charged to the jury" ( People v. Johnson , 10 N.Y.3d 875, 878, 860 N.Y.S.2d 762, 890 N.E.2d 877 [2008] ; see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Here, County Court correctly defined "sell" as "to sell, exchange, give or dispose of to another" and "intent to sell" as the "conscious objective or purpose ... to sell" (see Penal Law §§ 15.05 [1] ; 220.00 [1]). Applying those definitions to defendant's undisputed sale of crack cocaine to a cooperating buyer in exchange for approximately $100 in cash and a portion of the drugs, we conclude that an acquittal on either charge would have been unreasonable (see generally Danielson , 9 N.Y.3d at 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). Contrary to defendant's assertion, the verdict cannot be against the weight of the evidence on the agency defense because that defense was not submitted to the jury (see People v. Mahon , 160 A.D.3d 563, 563, 74 N.Y.S.3d 554 [1st Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] ; see also People v. Bell , 191 A.D.3d 1308, 1309, 141 N.Y.S.3d 215 [4th Dept. 2021], lv denied 37 N.Y.3d 954, 147 N.Y.S.3d 547, 170 N.E.3d 421 [2021] ; People v. Simpson , 173 A.D.3d 1617, 1618, 102 N.Y.S.3d 357 [4th Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 631, 134 N.E.3d 630 [2019] ). Defendant's reliance on People v. Cruz, 176 A.D.3d 852, 110 N.Y.S.3d 148 (2d Dept. 2019) is unavailing because the trial court gave an agency instruction in that case (see id. at 857, 110 N.Y.S.3d 148 ).
We reject defendant's further contention that the court erred in refusing to submit the agency defense to the jury. Given the Court of Appeals’ "language in [People v.] Lam Lek Chong [45 N.Y.2d 64, 407 N.Y.S.2d 674, 379 N.E.2d 200 (1978)] as well as common sense," it is well established that " ‘the defense of agency is not intended to protect a person who arranges a drug transaction for the purpose of earning the equivalent of a finder's fee or broker's commission, in contrast to a person who performs a "favor," possibly rewarded by a tip or incidental benefit’ " ( People v. Rose , 58 A.D.3d 544, 545, 872 N.Y.S.2d 48 [1st Dept. 2009], lv denied 12 N.Y.3d 859, 881 N.Y.S.2d 670, 909 N.E.2d 593 [2009] ; see People v. Roche , 45 N.Y.2d 78, 83, 407 N.Y.S.2d 682, 379 N.E.2d 208 [1978], cert denied 439 U.S. 958, 99 S.Ct. 359, 58 L.Ed.2d 350 [1978] ; People v. Elvy , 277 A.D.2d 80, 80, 715 N.Y.S.2d 247 [1st Dept. 2000], lv denied 96 N.Y.2d 783, 725 N.Y.S.2d 647, 749 N.E.2d 216 [2001] ). Here, as noted above, it is undisputed that defendant sold crack cocaine to a cooperating buyer in exchange for approximately $100 in cash and a portion of the drugs. Moreover, it was defendant himself who insisted on keeping a portion of the drugs, and it was defendant himself who decided how much of the drugs he would be keeping. Unlike the "tip" scenario contemplated by the Court of Appeals in Lam Lek Chong , this is not a case in which the buyer, grateful for the seller's gratis assistance in procuring illegal drugs, generously decided to share the drugs with the seller as a token of appreciation. The roles were reversed in this case; instead of accepting a token gift at the buyer's behest, the seller—defendant—decided on his own initiative to take a cut of the drugs for himself. Thus, defendant was not entitled to an agency instruction because there is no reasonable interpretation of the evidence, even when viewed in the light most favorable to him, under which he acted "solely to accommodate the buyer" ( People v. Feldman , 50 N.Y.2d 500, 503, 429 N.Y.S.2d 602, 407 N.E.2d 448 [1980] [emphasis added]; see Roche , 45 N.Y.2d at 83, 407 N.Y.S.2d 682, 379 N.E.2d 208 ; Rose , 58 A.D.3d at 544-545, 872 N.Y.S.2d 48 ; People v. Hunt , 50 A.D.3d 1246, 1248, 855 N.Y.S.2d 736 [3d Dept. 2008], lv denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 [2008] ).
Finally, we note that both the certificate of conviction and the uniform sentence and commitment form incorrectly indicate that defendant was sentenced as a second felony offender, and they must be amended to reflect defendant's sentencing as a second felony drug offender previously convicted of a violent felony (see People v. Martinez , 166 A.D.3d 1558, 1560, 88 N.Y.S.3d 732 [4th Dept. 2018] ). The foregoing documents must also be amended to reflect the court's assessment of the required fees and surcharges (see People v. Cutaia , 167 A.D.3d 1534, 1536, 90 N.Y.S.3d 444 [4th Dept. 2018], lv denied 33 N.Y.3d 947, 100 N.Y.S.3d 195, 123 N.E.3d 854 [2019] ).