Opinion
106905
07-16-2015
The PEOPLE of the State of New York, Respondent, v. Christopher M. VANGUILDER, Appellant.
Robert Gregor, Lake George, for appellant. G. Scott Walling, Special Prosecutor, Schenectady, for respondent.
Robert Gregor, Lake George, for appellant.
G. Scott Walling, Special Prosecutor, Schenectady, for respondent.
Before: LAHTINEN, J.P., McCARTHY, ROSE and CLARK, JJ.
Opinion
McCARTHY, J.Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered May 30, 2014, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the seventh degree (two counts).
On two separate occasions, a police officer fit a confidential informant (hereinafter the CI) with a recording device and sent him into defendant's mobile home in Saratoga County to buy crack cocaine. After both controlled buys occurred, defendant and Sadie Willis were indicted for the crimes of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the seventh degree (two counts). In full satisfaction of the indictment against her, Willis pleaded guilty to attempted sale of a controlled substance in the third degree and agreed to testify against defendant. Following a jury trial, at which defendant raised the defense of agency, defendant was convicted as charged and sentenced, as a second felony drug offender, to an aggregate prison term of 10 years to be followed by six years of postrelease supervision. Defendant appeals.
The verdict is supported by legally sufficient evidence and is not against the weight of such evidence. As relevant here, the People were required to establish that defendant knowingly and unlawfully possessed a narcotic drug with intent to sell it (see Penal Law § 220.16[1] ), and that defendant knowingly and unlawfully sold a narcotic drug (see Penal Law § 220.39 [1 ] ). Additionally, since defendant advanced an agency defense, it was incumbent upon the People to establish that defendant had not acted “solely as the agent of the buyer” (People v. Lam Lek Chong, 45 N.Y.2d 64, 73, 407 N.Y.S.2d 674, 379 N.E.2d 200 [1978] [internal quotation marks and citation omitted], cert. denied 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331 [1978] ), as such a defense negates the intent element of both offenses (see People v. Watson, 20 N.Y.3d 182, 185–186, 957 N.Y.S.2d 669, 981 N.E.2d 265 [2012] ; People v. Guthrie, 57 A.D.3d 1168, 1169, 869 N.Y.S.2d 292 [2008], lv. denied 12 N.Y.3d 816, 881 N.Y.S.2d 24, 908 N.E.2d 932 [2009] ). The issue of whether a defendant was the seller of a drug, “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 at 74, 407 N.Y.S.2d 674, 379 N.E.2d 200 ; see People v. Guthrie, 57 A.D.3d at 1169, 869 N.Y.S.2d 292 ). In so doing, “the jury ... may consider such factors as the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction” (People v. Ortiz, 76 N.Y.2d 446, 449, 560 N.Y.S.2d 186, 560 N.E.2d 162 [1990] [internal quotation marks and citation omitted] ). “Notably, profit does not necessarily equate with pecuniary gain” in determining whether a defendant may stand to benefit from the underlying sale (People v. Robinson, 123 A.D.3d 1224, 1226, 999 N.Y.S.2d 555 [2014], lvs. denied 25 N.Y.3d 992, 993, 10 N.Y.S.3d 535, 536, 32 N.E.3d 972, 973 [2015] ).
Here, the CI testified that he had known defendant for approximately one month and had bought drugs in his home on 5 to 10 occasions. Willis testified that she had known defendant for approximately one year and had sold drugs out of his home on about 12 occasions. According to Willis, she would give defendant crack cocaine in exchange for the use of his house and “whenever [she] felt that he deserved it.” Willis further explained that those occasions when defendant deserved crack cocaine were when defendant made sales of the drug. Willis acknowledged that her customers were “[defendant's] people” because she was from New York City. Willis further testified that she kept exclusive control of the crack cocaine at all times, except for the transactions, due to the fact that defendant was a user. On the video recording of the first sale, Willis and the CI wait for defendant to begin the transaction, at which point the CI gives defendant the money, and defendant counts it and gives the CI the crack cocaine. On the recording of the second sale, defendant answers the door, takes the money from the CI and counts it, whereupon Willis goes to get the crack cocaine and hands it to defendant, who then gives it to the CI. During both sales, defendant asks for “a hit” from the sale, and when the CI refuses, defendant responds, “You never do” and, “It don't matter to me.”
Although defendant did not receive a monetary share of the profits from the drug sales, Willis testified that she gave him crack cocaine in exchange for his assistance with a successful sale. Further, defendant touted the product and thereby exhibited “[s]alesman-like behavior” (People v. Roche, 45 N.Y.2d 78, 85, 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] ; see People v. Robinson, 123 A.D.3d at 1226, 999 N.Y.S.2d 555 ). Additionally, the evidence of defendant's prior conviction of criminal possession of a controlled substance in the fifth degree showed that defendant previously participated in a drug transaction in which he had intended to sell drugs (see People v. Monykuc, 97 A.D.3d 900, 901, 947 N.Y.S.2d 830 [2012] ; People v. Lauderdale, 243 A.D.2d 760, 761, 662 N.Y.S.2d 860 [1997], lv. denied 91 N.Y.2d 875, 668 N.Y.S.2d 574, 691 N.E.2d 646 [1997] ). Viewing the foregoing evidence in a light most favorable to the People, and according them every reasonable inference (see
People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ; People v. Abbott, 107 A.D.3d 1152, 1155, 967 N.Y.S.2d 227 [2013] ), the evidence evinces that defendant played a greater role than just a buyer's agent in the drug transactions (see People v. Guthrie, 57 A.D.3d at 1169–1170, 869 N.Y.S.2d 292 ). Further, the jury was also entitled to credit this evidence that defendant acted as an agent of Willis, the seller and, deferring to those credibility determinations, we do not find defendant's convictions to be against the weight of the evidence (see People v. Robinson, 123 A.D.3d at 1226–1227, 999 N.Y.S.2d 555 ).
County Court did not err in allowing testimony that a person threatened the CI with a gun in defendant's home. Defendant's objection that this testimony was outside the scope of his cross-examination of the CI did not preserve his Molineux and relevancy arguments for our review (see People v. Mattis, 108 A.D.3d 872, 875, 969 N.Y.S.2d 581 [2013], lvs. denied 22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013] ; see generally People v. Gray, 86 N.Y.2d 10, 20–21, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, no Molineux analysis was required, as defendant was not involved in the alleged incident wherein the CI was threatened with a handgun (see People v. Arafet, 13 N.Y.3d 460, 465, 892 N.Y.S.2d 812, 920 N.E.2d 919 [2009] ; People v. Kindred, 100 A.D.3d 1038, 1039, 952 N.Y.S.2d 832 [2012], lv. denied 21 N.Y.3d 913, 966 N.Y.S.2d 364, 988 N.E.2d 893 [2013] ). Additionally, the evidence in question was relevant given previous questioning by defense counsel as to whether the CI chose to implicate defendant—rather than allegedly more central drug dealers in the operation—because a controlled buy at defendant's home would be safer for the CI. Further, any minimal prejudice to defendant that could arise from the CI's description of another party's bad act in defendant's home did not substantially outweigh the probative value of such evidence, especially given the court's limiting instructions (see People v. Burkett, 101 A.D.3d 1468, 1471, 957 N.Y.S.2d 417 [2012], lv. denied 20 N.Y.3d 1026, 960 N.Y.S.2d 725, 984 N.E.2d 923 [2013] ; People v. Kindred, 100 A.D.3d at 1039, 952 N.Y.S.2d 832 ; see generally People v. Mateo, 2 N.Y.3d 383, 425, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004], cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 [2004] ).
County Court provided the jury with meaningful responses to their inquiries during deliberations. Defendant contends that the court failed to meaningfully respond to the jury's inquiries because it failed to offer a supplemental explanation directly addressing the relationship between the agency defense and accessorial liability. However, although the jury asked for additional instruction regarding the agency defense and then a read-back of the court's charge regarding accessorial liability, it did not explicitly seek an explanation from the court as to the relationship between that defense and that theory of liability. Under the circumstances, County Court's choice to accurately answer the questions that the jury asked without going beyond the jury's request was within the court's discretion and appropriately responsive (see CPL 310.30 ; People v. Almodovar, 62 N.Y.2d 126, 131–132, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984] ; People v. Acevedo, 118 A.D.3d 1103, 1107–1108, 987 N.Y.S.2d 660 [2014] ; People v. Williams, 28 A.D.3d 1005, 1010, 814 N.Y.S.2d 353 [2006], lv. denied 7 N.Y.3d 819, 822 N.Y.S.2d 494, 855 N.E.2d 810 [2006] ).
As the People concede, the two counts of criminal possession of a controlled substance in the seventh degree are inclusory concurrent counts of criminal possession of a controlled substance in the third degree (compare Penal Law § 220.16[1], with Penal Law § 220.03 ; see People v. Bailey, 295 A.D.2d 632, 635, 743 N.Y.S.2d 610 [2002], lv. denied 98 N.Y.2d 766, 752 N.Y.S.2d 6, 781 N.E.2d 918 [2002] ). “When inclusory counts are submitted for consideration, they must be submitted in the alternative since a conviction on the greater count is deemed a dismissal of every lesser count” (People v. Bailey, 295 A.D.2d at 635, 743 N.Y.S.2d 610 ; see CPL 300.40[3] [b] ; People v. Miller, 6 N.Y.3d 295, 300, 812 N.Y.S.2d 20, 845 N.E.2d 451 [2006] ; People v. Paige, 120 A.D.2d 808, 811, 502 N.Y.S.2d 532 [1986], lv. denied 68 N.Y.2d 772, 506 N.Y.S.2d 1056, 498 N.E.2d 158 [1986] ). Therefore, defendant's misdemeanor convictions of criminal possession of a controlled substance in the seventh degree must be reversed and the concurrent, one-year sentences vacated (see People v. Bailey, 295 A.D.2d at 635, 743 N.Y.S.2d 610 ; People v. Florez, 265 A.D.2d 491, 491–492, 697 N.Y.S.2d 300 [1999], lv. denied 94 N.Y.2d 880, 705 N.Y.S.2d 12, 726 N.E.2d 489 [1999] ).
We are not persuaded, however, that defense counsel's failure to request an alternative charge on these counts “elevates this case to the level of one of those rare cases where a single lapse can constitute ineffective assistance of counsel” (People v. Baker, 58 A.D.3d 1069, 1072, 872 N.Y.S.2d 229 [2009] ). Although counsel erred on a clear-cut issue (see e.g. People v. Coleman, 2 A.D.3d 1045, 1047, 770 N.Y.S.2d 144 [2003] ; People v. Bailey, 295 A.D.2d at 635, 743 N.Y.S.2d 610 ; People v. Florez, 265 A.D.2d at 491–492, 697 N.Y.S.2d 300 ; People v. Brown, 198 A.D.2d 291, 292, 603 N.Y.S.2d 565 [1993], lv. denied 82 N.Y.2d 891, 610 N.Y.S.2d 158, 632 N.E.2d 468 [1993] ; People v. Wilson, 162 A.D.2d 747, 748, 557 N.Y.S.2d 429 [1990], lv. denied 76 N.Y.2d 945, 563 N.Y.S.2d 74, 564 N.E.2d 684 [1990] ), such an error must be viewed in the context of the entire representation, particularly in light of the other charges that defendant faced. Most importantly here, counsel's error appears to arise from his failure to properly consider the misdemeanor charges of criminal possession of a controlled substance in the seventh degree. While defendant was certainly entitled to representation on those charges, defendant had previously been convicted of a felony drug offense and faced felony charges of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. Given the vastly disparate potential outcomes related to the felony and misdemeanor offenses with which defendant was charged, particularly in light of his prior felony drug conviction (compare Penal Law § 70.15, with Penal Law § 70.70[1][b] ; [3][b][i] ), and absent any proof that counsel's failure was greater than that of failing to properly attend to the misdemeanor charges, we do not find that defendant was deprived of meaningful representation (compare People v. Smith, 30 A.D.3d 693, 694, 816 N.Y.S.2d 237 [2006] ). Defendant's remaining contentions as to ineffective assistance of counsel do not warrant any different result, as he has not established the absence of “strategic or other legitimate explanations” for those alleged errors (People v. Duffy, 119 A.D.3d 1231, 1234, 990 N.Y.S.2d 346 [2014], lv. denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014] ; see People v. Wimberly, 86 A.D.3d 806, 808, 927 N.Y.S.2d 229 [2011], lv. denied 18 N.Y.3d 863, 938 N.Y.S.2d 870, 962 N.E.2d 295 [2011] ).
Additionally, as defendant fails to even allege that the potential conflict arising from defense counsel's simultaneous representation of a third party in an unrelated matter “affected, or operated on, or [bore] a substantial relation to the conduct of the defense” in this case, we find his argument in this regard to be unavailing (People v. Sanchez, 21 N.Y.3d 216, 223, 969 N.Y.S.2d 840, 991 N.E.2d 698 [2013] ; see People v. Watson, 115 A.D.3d 687, 689, 981 N.Y.S.2d 753 [2014], lv. denied 23 N.Y.3d 1069, 994 N.Y.S.2d 328, 18 N.E.3d 1149 [2014] ). Finally defendant's sentence is not harsh or excessive given his criminal history and the fact that the sentence is less than the maximum authorized (see Penal Law § 70.70[1][b] ; [3][b][i]; People v. Bailey, 295 A.D.2d at 635, 743 N.Y.S.2d 610 ).
Defendant's remaining arguments are without merit.
ORDERED that the judgment is modified, on the law, by reversing defendant's convictions of criminal possession of a controlled substance in the seventh degree under counts 3 and 6 of the indictment; said counts dismissed and the sentences imposed thereon vacated; and, as so modified, affirmed.
LAHTINEN, J.P., ROSE and CLARK, JJ., concur.