People v. Johnson 

• Decision Date: 19 January 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Ronald JOHNSON Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00255

91 A.D.3d 1115

939 N.Y.S.2d 575

The PEOPLE of the State of New York, Respondent,

v.Ronald JOHNSON Jr., Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 19, 2012.

Mark Diamond, Albany, for appellant, and appellant pro se.

D. Holley Carnright, District Attorney, Kingston (Tracy Steeves of counsel), for respondent.

Before: SPAIN, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.

SPAIN, J.P.

Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered August 26, 2008, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

Defendant appeals from his conviction, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. We affirm.

The majority of defendant's contentions on appeal were unpreserved for review by timely objections at trial. However, as defendant asserts that he was deprived of the effective assistance of counsel based primarily on counsel's failure to advance these issues at trial, we must address them in that context.

First, defendant seeks resentencing, arguing that County Court failed to comply with CPL 400.21 when sentencing him as a second felony offender, thereby depriving him of due process. CPL 400.21(2) requires that a predicate felony statement be filed by the People and provided to a defendant prior to the imposition of sentence. The sentencing minutes, however, demonstrate that defendant was advised that he was being sentenced as a second felony offender and, after the court related the details of defendant's previous offense from the prior felony information, defendant affirmed that the information was correct and that he did not wish to contest the prior felony statement. Under these circumstances, there was substantial compliance with the statutory requirements of CPL 400.21 ( see People v. Glynn, 72 A.D.3d 1351, 1352, 899 N.Y.S.2d 442 [2010], lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [2010]; People v. Bynum, 68 A.D.3d 1348, 1350, 890 N.Y.S.2d 217 [2009], lv. denied 14 N.Y.3d 798, 899 N.Y.S.2d 132, 925 N.E.2d 936 [2010] ).

Defendant also alleges unpreserved errors in County Court's charge to the jury. We discern no reversible error in the court's charge. Defendant's assertion that the court improperly instructed the jury not to consider defense counsel's closing statement as evidence is belied by the record, which reflects that the court correctly instructed the jury—multiple times—that both parties' opening and closing statements were not to be considered evidence. Although the court incorrectly stated—early in its charge to the jury—that a “jury trial is the process by which we attempt to ascertain the truth” ( see People v. Benedetto, 294 A.D.2d 958, 959, 744 N.Y.S.2d 92 [2002]; People v. Rivera, 116 A.D.2d 371, 375–376, 501 N.Y.S.2d 817 [1986] ), the court thereafter thoroughly and accurately explained that the burden remains upon the People to prove each element of the charges beyond a reasonable doubt. Finally, contrary to defendant's contention, we find no error in the charge given by the court with respect to the People's burden of proof to disprove the agency defense. Accordingly, we hold that defendant was not deprived of the effective assistance of counsel based upon any of the claimed, unpreserved errors. Likewise, we perceive no error in trial counsel's decision not to request that County Court poll the jury after the verdict ( see People v. Bynum, 68 A.D.3d at 1350, 890 N.Y.S.2d 217). Finally, defendant fails to articulate how he was prejudiced by counsel's failure to object to a missing surveillance tape or to the chain of custody of the package entered into evidence. Counsel pursued an agency defense, which included defendant's admission to the existence and transfer of the drugs in question. Indeed, objectively viewing the record as a whole, we conclude that defendant was provided with meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]; People v. Garrow, 75 A.D.3d 849, 852, 904 N.Y.S.2d 589 [2010] ).

Defendant's assertion that his conviction of criminal sale of a controlled substance in the third degree was not supported by legally sufficient evidence is not preserved. Nevertheless, we necessarily review the evidence adduced at trial as to each of the elements of that crime in the context of defendant's challenge to the weight of the evidence ( see People v. Stevens, 87 A.D.3d 754, 754 n., 928 N.Y.S.2d 146 [2011]; People v. Wilson, 71 A.D.3d 1333, 1334, 897 N.Y.S.2d 746 [2010]; People v. Morrison, 71 A.D.3d 1228, 1229, 896 N.Y.S.2d 253 [2010], lvs. denied 15 N.Y.3d 747, 754, 906 N.Y.S.2d 820, 827, 933 N.E.2d 219, 226 [2010] ). Here, we find that defendant “knowingly and unlawfully [sold] ... a narcotic drug” (Penal Law § 220.39[1] ),¹ and we are not persuaded that the jury's rejection of the agency defense is against the weight of the evidence. Significantly, whether a defendant is a “ ‘seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the jury to resolve’ ” ( People v. Poole, 79 A.D.3d 1685, 1686, 917 N.Y.S.2d 775 [2010], lv. denied 16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 [2011], quoting People v. Lam Lek Chong, 45 N.Y.2d 64, 74, 407 N.Y.S.2d 674, 379 N.E.2d 200 [1978], cert. denied 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331 [1978] ).

The People presented the testimony of a confidential informant (hereinafter CI) and an undercover police officer. After the CI telephoned defendant to set up a time and place to meet, the CI and the officer...