People v. Bickham

• Decision Date: 31 December 2020
• Docket Number: 110766
• Citation: 189 A.D.3d 1972,138 N.Y.S.3d 693
• Parties: The PEOPLE of the State of New York, Respondent, v. Willis S. BICKHAM Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1972
138 N.Y.S.3d 693

The PEOPLE of the State of New York, Respondent,
v.
Willis S. BICKHAM Jr., Appellant.

110766

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

Calendar Date: November 16, 2020
Decided and Entered: December 31, 2020

Dennis J. Lamb, Troy, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Mulvey and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

138 N.Y.S.3d 696

Defendant was charged by indictment with two counts each of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, stemming from controlled buys of heroin that occurred on two consecutive days. To resolve defendant's pretrial omnibus motion, County Court reviewed the grand jury minutes and dismissed the two counts charging criminal possession of a controlled substance in the third degree, finding that the People incorrectly instructed the grand jury that the agency defense did not apply to the possession counts. Following a bench trial, defendant was convicted of both counts of criminal sale of a controlled substance in the third degree. After denying defendant's CPL 330.30 motion to set aside the guilty verdict, the court sentenced him, as a second felony drug offender, to concurrent prison terms of five years, followed by three years of postrelease supervision. Defendant appeals.

The verdict is not against the weight of the evidence. "A weight of the evidence review requires this Court to first determine whether, based on all the credible evidence, a different finding would not have been unreasonable" ( People v. Forney, 183 A.D.3d 1113, 1113–1114, 124 N.Y.S.3d 732 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 397, 152 N.E.3d 1198 [2020] ; see People v. Benjamin, 183 A.D.3d 1125, 1126, 123 N.Y.S.3d 770 [2020] ). Where a different verdict would not have been unreasonable, this Court must "view the evidence in a neutral light and weigh the conflicting testimony, assess the rational inferences to be drawn from that testimony and determine whether the [trier of fact] was justified in finding that the elements of the crime were proven beyond a reasonable doubt" ( People v. Cole, 177 A.D.3d 1096, 1097, 114 N.Y.S.3d 132 [2019], lv denied 34 N.Y.3d 1015, 114 N.Y.S.3d 755, 138 N.E.3d 484 [2019] ; see People v. Callahan, 186 A.D.3d 943, 943–944, 128 N.Y.S.3d 370 [2020] ). In making this assessment, we give great deference to the factfinder's credibility assessments, based on the factfinder's "opportunity to view the witnesses, hear the testimony and observe demeanor" ( People v. Cole, 177 A.D.3d at 1097, 114 N.Y.S.3d 132 [internal quotation marks and citation omitted]; see People v. Benjamin, 183 A.D.3d at 1126, 123 N.Y.S.3d 770 ).

As relevant here, to convict defendant of criminal sale of a controlled substance in the third degree, the People were required to establish that he knowingly and unlawfully sold a narcotic drug (see Penal Law § 220.39[1] ). Where a defendant raises an agency defense, the People must prove that the defendant did not act "solely as the agent of a buyer" ( People v. Watson, 20 N.Y.3d 182, 185, 957 N.Y.S.2d 669, 981 N.E.2d 265 [2012] [internal quotation marks and citation omitted]; accord People v. Vickers, 168 A.D.3d 1268, 1269, 92 N.Y.S.3d 473 [2019], lvs denied 33 N.Y.3d 1028, 1036, 102 N.Y.S.3d 536, 126 N.E.3d 186 [2019] ). Under the agency doctrine, "a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer" ( People v. Watson, 20 N.Y.3d at 185, 957 N.Y.S.2d 669, 981 N.E.2d 265 [internal quotation marks and citation omitted]; accord People v. Kramer, 118 A.D.3d 1040, 1041, 989 N.Y.S.2d 143 [2014] ; People v. Vickers, 168 A.D.3d at 1270, 92 N.Y.S.3d 473 ).

138 N.Y.S.3d 697

"[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the [trier of fact] 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 [1978], cert denied 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331 [1978] ; accord People v. Kramer, 118 A.D.3d at 1041, 989 N.Y.S.2d 143 ), including factors such 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. Watson, 20 N.Y.3d at 186, 957 N.Y.S.2d 669, 981 N.E.2d 265 [internal quotation marks and citation omitted]; accord People v. Peterkin, 135 A.D.3d 1192, 1192–1193, 23 N.Y.S.3d 719 [2016] ; see People v. Gallo, 135 A.D.3d 982, 984, 22 N.Y.S.3d 262 [2016] ). "Notably, profit need not be pecuniary and includes transactions in which a defendant stands to benefit from the underlying sale in other ways, including getting cheaper or free drugs for himself or herself" ( People v. Vickers, 168 A.D.3d at 1272, 92 N.Y.S.3d 473 [internal quotation marks, brackets and citation omitted]; see 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] ).

County Court heard testimony from an undercover officer who twice gave money to defendant and received heroin from him, another officer who observed the transactions from a distance and defendant himself. A video and audio recording of each transaction was admitted into evidence and the parties stipulated to admission of documents establishing that the substance exchanged was heroin. In his testimony, defendant admitted that he engaged in text message conversations with the undercover officer, they met in person, and on two different days the officer gave defendant money, defendant left for a short period of time, then he returned and handed the officer heroin. Therefore, the only question is whether the agency defense applies.

The officer and defendant had no prior relationship; they were introduced by an informant one day prior to the first recorded transaction involving the officer, at the time of a transaction in which defendant provided drugs to the informant. Defendant testified that he is not a drug dealer, but is only an addict who would act as a runner or middleman to obtain drugs for others in hopes that they, in appreciation of the favor, would give him a portion of the drugs for his own use. Although he did not demand or ask for part of the drugs, his hope or expectation of something in return for his efforts may, alone, be sufficient to defeat the agency defense (see People v. Vickers, 168 A.D.3d at 1272, 92 N.Y.S.3d 473 ; People v. Robinson, 123 A.D.3d at 1226, 999 N.Y.S.2d 555 ). In any event, the officer's testimony and the recordings showed that defendant asserted, more than once, that he owned the drugs that would be given to the officer. Defendant did not deny having made such statements, but testified that he lied to the officer about his ownership of the drugs because he was trying to prevent the officer from seeking other sources of drugs, and that addicts will say anything to get high. Although a different result would not have been unreasonable, when the proof is viewed as a whole, and accepting County Court's credibility assessments that necessarily favored the People's witnesses, the record establishes that the court's rejection of the agency defense – and, thus, its determination that defendant acted as a seller, rather than an agent of the buyer – is not against the weight of the

138 N.Y.S.3d 698

evidence (see People v. Peterkin, 135 A.D.3d at 1193, 23 N.Y.S.3d 719 ; People v. Johnson, 91 A.D.3d 1115, 1117, 939 N.Y.S.2d 575 [2012], lv denied 18 N.Y.3d 959, 944 N.Y.S.2d 487, 967 N.E.2d 712 [2012] ).

County Court did not err in partially denying defendant's motion to dismiss the indictment based upon the grand jury instructions. A review of the grand jury minutes reveals that the People instructed the grand jury on the agency defense in connection with the...