People v. Mosby

• Citation: 911 N.Y.S.2d 493,78 A.D.3d 1371
• Parties: The PEOPLE of the State of New York, Respondent, v. Malik A. MOSBY, Appellant.
• Decision Date: 18 November 2010
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 493
78 A.D.3d 1371

The PEOPLE of the State of New York, Respondent,
v.
Malik A. MOSBY, Appellant.

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

Nov. 18, 2010.

911 N.Y.S.2d 495

Margaret McCarthy, Ithaca, for appellant.

Gwen Wilkinson, District Attorney, Ithaca (Andrew M. McElwee of counsel), for respondent.

Before: MERCURE, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ.

KAVANAGH, J.

78 A.D.3d 1371

Appeals (1) from a judgment of the County Court of Tompkins County (Sherman, J.), rendered May 23, 2006, 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), (2) by permission, from an order of said court, entered

911 N.Y.S.2d 496

October 18, 2007, which denied defendant's motion pursuant to CPL article 440 to, among other things, vacate the judgment of conviction, and (3) by permission, from an order of said court, entered July 28, 2008, which, upon renewal, adhered to its prior order.

Defendant was charged by indictment with selling cocaine, fentanyl and/or oxycodone to police officers working in an undercover capacity on two separate occasions in August 2005. Following a jury trial, he was found guilty 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) and later sentenced, as a second felony offender, to an aggregate prison term of 10 years, plus three-year periods of postrelease supervision on each conviction as they relate to each drug transaction.

78 A.D.3d 1372

County Court subsequently denied defendant's motion pursuant to CPL 440.10 and 440.20 to vacate his judgment of conviction and sentence, as well as his motion to renew that application based on the discovery of new evidence. Defendant now appeals from his judgment of conviction and, by permission, from the denial of his CPL article 440 motion and his motion to renew.

In a prior opinion, this Court determined that the matter should be remitted to County Court to determine whether the prosecution failed to disclose certain Rosario material at trial, and, if so, whether a reasonable possibility existed that, had the jury heard this evidence or any part of it, it would have arrived at a different verdict (69 A.D.3d 1045, 69 A.D.3d 1045 [2009] ). Upon remittal and after a hearing, County Court determined that the material should have been disclosed but, even if it had been heard by the jury, it would not have resulted in a different verdict. We agree and affirm the judgment of conviction, as well as both orders denying defendant's CPL article 440 motion and motion to renew.

While the prosecution provided defendant with tape recordings and other materials generated by the drug sales charged in the indictment, it originally failed to disclose the existence of a tape recording of a conversation between defendant and an undercover police officer that took place prior to the transactions in question. This conversation set the stage for the undercover police officer's subsequent dealings with defendant, and the tape recording of it should have been disclosed to defendant prior to trial ( see CPL 240.45 [1] [a]; People v. Rosario, 9 N.Y.2d 286, 290-291, 213 N.Y.S.2d 448, 173 N.E.2d 881 [1961], cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 [1961] ). However, we agree with County Court that, had this tape recording or any part of it been put into evidence at trial, it is highly unlikely, given its content, that the jury would have reached a different result ( see CPL 240.75; People v. Baghai-Kermani, 84 N.Y.2d 525, 532, 620 N.Y.S.2d 313, 644 N.E.2d 1004 [1994]; People v. Coley, 33 A.D.3d 383, 384, 822 N.Y.S.2d 503 [2006], lv. denied 8 N.Y.3d 844, 830 N.Y.S.2d 703, 862 N.E.2d 795 [2007] ). The conversation clearly implicated defendant in ongoing drug activity, and nothing said during it was exculpatory or could have been used to support his proposed agency defense.

Next, we reject defendant's arguments that he was denied the effective assistance of counsel due to counsel's failure to request an agency charge with respect to counts 3 and 4 of the indictment and an expanded agency charge with respect to counts 7 and 8 of the indictment. To establish such a claim, "defendant must demonstrate that his attorney failed to provide meaningful representation"

911 N.Y.S.2d 497, 78 A.D.3d 1373

( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). While it is not necessary in making such a claim that defendant establishes that he was prejudiced by counsel's failures, such a showing is undoubtedly significant; however, "[o]ur focus is on the fairness of the proceedings as a whole" ( People v. Stultz, 2 N.Y.3d 277, 284, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004]; see People v. Caban, 5 N.Y.3d at 155-156, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Moreover, a defendant must "demonstrate the absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct," and counsel will not be found to have been ineffective simply as a result of a failure "to make a motion or argument that has little or no chance of success" ( People v. Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [internal quotation marks and citations omitted] ).

Defendant's claim of ineffective assistance is based in part on his contention that counsel did not do all that he should have in pursuing an agency defense at trial. A defendant cannot be convicted of the illegal sale of narcotics if, at the time of the transaction, it is established that he is acting "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], cert. denied 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331 [1978] [internal quotation marks and citation omitted]; accord People v. Andujas, 79 N.Y.2d 113, 117, 580 N.Y.S.2d 719, 588 N.E.2d 754 [1992] ). Moreover, a more expansive explanation regarding the agency defense should be given if, at the time of the sale, defendant has acted "both as a buyer in his [or her] own right and as agent to buy for another" ( People v. Andujas, 79 N.Y.2d at 118, 580 N.Y.S.2d 719, 588 N.E.2d 754). Here, defendant's counsel did not request an expanded agency charge, but did request, as previously...