People v. Lee

• Decision Date: 18 June 2015
• Docket Number: 104790
• Citation: 2015 N.Y. Slip Op. 05218,13 N.Y.S.3d 581,129 A.D.3d 1295
• Parties: The PEOPLE of the State of New York, Respondent, v. Gregory LEE, Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1295

13 N.Y.S.3d 581

2015 N.Y. Slip Op. 05218

The PEOPLE of the State of New York, Respondent

v.Gregory LEE, Appellant.

104790

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

June 18, 2015.

Salvatore C. Adamo, Albany, for appellant, and appellantpro se.

D. Holley Carnright, District Attorney, Kingston (Carly Wolfrom of counsel), for respondent.

Before: PETERS, P.J., GARRY, ROSE and DEVINE, JJ.

Opinion

GARRY, J.

Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered December 14, 2011, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts).

In April 2011, defendant was arrested for possessing and selling heroin and cocaine in the Town of Saugerties, Ulster County.He was indicted on three counts each of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.Following a jury trial, he was convicted of two counts of each offense and sentenced as a second felony offender to an aggregate prison term of 18 years, followed by three years of postrelease supervision.Defendant appeals.

Initially, we reject defendant's claim that he was denied a fair trial by County Court's refusal to recuse itself.Where, as here, there are no grounds for legal disqualification (seeJudiciary Law § 14 ), a trial judge's decision as to whether recusal is necessary will not be disturbed absent a clear abuse of discretion (seePeople v. Moreno,70 N.Y.2d 403, 406, 521 N.Y.S.2d 663, 516 N.E.2d 200[1987];People v. Lerario,43 A.D.3d 492, 492–493, 840 N.Y.S.2d 471[2007];People v. Wallis,24 A.D.3d 1029, 1031, 806 N.Y.S.2d 760[2005], lv. denied6 N.Y.3d 854, 816 N.Y.S.2d 760, 849 N.E.2d 983[2006] ).Defendant based his motion for recusal on the fact that the County Judge who presided over his trial had been the District Attorney in 2005, when defendant was prosecuted by his office on a similar drug-related charge.Defendant has acknowledged that the trial was handled by assistant district attorneys and that, to his knowledge, the Judge did not participate.Nevertheless, defendant asserted that the Judge must have been aware of the 2005prosecution and, as a result, acquired prejudicial information.In denying the motion, the Judge stated unequivocally that he had no memory of the prior prosecution, no knowledge or information about defendant other than the evidence in the current prosecution, and no reservations as to whether he could be fair and impartial.Nothing in our review of the record controverts these statements or suggests any bias or prejudice.Accordingly, we find no abuse of discretion (seePeople v. Curkendall,12 A.D.3d 710, 714, 783 N.Y.S.2d 707[2004], lv. denied4 N.Y.3d 743, 790 N.Y.S.2d 655, 824 N.E.2d 56[2004];People v. West,254 A.D.2d 315, 315, 680 N.Y.S.2d 99[1998];People v. Rosato,193 A.D.2d 1052, 1053, 599 N.Y.S.2d 195[1993], lv. denied84 N.Y.2d 910, 621 N.Y.S.2d 527, 645 N.E.2d 1227[1994];People v. Jones,143 A.D.2d 465, 466–467, 532 N.Y.S.2d 586[1988] ).

Defendant next claims that his convictions were not supported by legally sufficient evidence and that the verdict was against the weight of the evidence.The People sought to prove that defendant sold narcotics to a confidential informant (hereinafter CI) and an undercover officer in two controlled buys in March 2011.The CI testified that she agreed to participate in the controlled buys in exchange for favorable treatment of her alleged involvement in unrelated drug transactions.On both occasions, she telephoned defendant and arranged to meet him at a motel to purchase drugs.Before each transaction, she was searched, provided with a body wire and given prerecorded currency.She and an undercover officer then met defendant in the motel parking lot, where he accepted the buy money and, in exchange, provided them with heroin in the first transaction and with heroin and crack cocaine in the second transaction.Members of a law enforcement drug task force observed both controlled buys from a nearby van and made audio and video recordings of the transactions as they occurred.The undercover officer then retained possession of the drugs, which were subsequently tested and identified as heroin and cocaine.At trial, the CI and the undercover officer identified defendant as the person who participated in both transactions, officers who observed the transactions testified as to what they had seen and heard, and the audio and video recordings were played for the jury.

Defendant relied upon an agency defense at trial.Although conceding that he participated in both exchanges, he claimed that he merely acted as an agent for the true seller, did not intend to sell the drugs or profit from the transactions, and provided the drugs as a favor to the CI, who had told him that she and her companion—the undercover officer—were suffering from withdrawal symptoms.This testimony presented factual questions and credibility assessments for the jury, which had the opportunity to hear defendant's testimony and observe his demeanor (seePeople v. Lam Lek Chong,45 N.Y.2d 64, 74–75, 407 N.Y.S.2d 674, 379 N.E.2d 200[1978], cert. denied439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331[1978];People v. Mitchell,112 A.D.3d 1071, 1071–1072, 977 N.Y.S.2d 136[2013], lv. denied22 N.Y.3d 1140, 983 N.Y.S.2d 498, 6 N.E.3d 617[2014] ).It was likewise the jury's province to resolve inconsistencies and conflicts that defendant now contends rendered the trial testimony unworthy of belief, all of which were thoroughly explored on cross-examination.Viewing the evidence in the light most favorable to the People, we find a “valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury”(People v. Bleakley,69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672[1987];seePeople v. Guthrie,57 A.D.3d 1168, 1170, 869 N.Y.S.2d 292[2008], lv. denied12 N.Y.3d 816, 881 N.Y.S.2d 24, 908 N.E.2d 932[2009] ).Further, viewing the evidence in a neutral light and deferring to the jury's credibility assessments, we find that the People met their burden to disprove the agency defense and that the verdict was not contrary to the weight of the evidence (seePeople v. Robinson,123 A.D.3d 1224, 1226–1227, 999 N.Y.S.2d 555[2014], lvs. denied25 N.Y.3d 992, 993, 10 N.Y.S.3d 535, 536, 32 N.E.3d 972, 973[2015];People v. Mitchell,112 A.D.3d at 1073, 977 N.Y.S.2d 136;People v. Johnson,91 A.D.3d 1115, 1116–1117, 939 N.Y.S.2d 575[2012], lv. denied18 N.Y.3d 959, 944 N.Y.S.2d 487, 967 N.E.2d 712[2012] ).

County Court did not err in its Molineux, Ventimiglia or Sandoval rulings.During a joint pretrial hearing, the court denied the People's request to introduce evidence of certain prior convictions and bad acts, specifically including two 2005 convictions for criminal sale of a controlled substance in the third degree and certain alleged prior drug sales to the CI.The court found that the prejudicial effect of this evidence outweighed its probative value, but warned that this ruling could change if defendant opened the door during trial.Thereafter, defendant asserted his agency defense during his opening statement, and the People renewed their prior application.The court found that defendant had opened the door, conducted an additional Ventimiglia/Molineux hearing, and concluded that the evidence was relevant to rebut defendant's agency defense and demonstrate his intent to sell narcotics, and that its probative value outweighed its potential for prejudice.We find no error.It is well established that a defendant opens the door to Molineux evidence by asserting an agency defense (seePeople v. Mitchell,112 A.D.3d at 1073, 977 N.Y.S.2d 136;People v. Nealon,36 A.D.3d 1076, 1078, 827 N.Y.S.2d 359[2007], lv. denied8 N.Y.3d 988, 838 N.Y.S.2d 492, 869 N.E.2d 668[2007];People v. Ortiz,259 A.D.2d 979, 980, 688 N.Y.S.2d 358[1999], lv. denied93 N.Y.2d 1024, 697 N.Y.S.2d 583, 719 N.E.2d 944[1999] ), and any potential prejudice was mitigated by the court's timely and proper limiting instructions (seePeople v. Small,12 N.Y.3d 732, 733, 876 N.Y.S.2d 675, 904 N.E.2d 811[2009] ).

As for County Court's Sandoval rulings, the People sought before the trial to impeach defendant with evidence of his numerous prior convictions and bad acts in the event that he elected to testify.Upon such an application, a trial court, in its discretion, “may exclude the evidence entirely; limit the prosecution's inquiry to the mere fact that there has been a prior conviction; it may limit inquiry to the existence and nature of the prior conviction; or it may permit examination into the facts and circumstances underlying the prior conviction”(People v. Smith,18 N.Y.3d 588, 593, 942 N.Y.S.2d 5, 965 N.E.2d 232[2012][internal quotation marks and citations omitted] ).During the joint hearing, the court carefully considered each of defendant's prior convictions and ruled on the extent to which the People could question him, precluding all inquiry into some of the convictions and limiting the People's inquiry into the nature and underlying circumstances of almost all of the others.When defendant testified at trial, the People questioned him in accord with these directions, and defendant offered no objections.Considering the numerous restrictions imposed as a result of the court's careful analysis, we find no abuse of discretion (seePeople v. Nichol,121 A.D.3d 1174, 1175–1176, 994 N.Y.S.2d 691[2014] ).

Defendant next contends that County Court erred by granting the jury's request to allow the second seated juror to take over the duties of the jury foreperson.However, defendant was present and raised no objection when his counsel affirmatively consented to the substitution, and...