People v. Peterkin

• Decision Date: 21 January 2016
• Citation: 23 N.Y.S.3d 719,135 A.D.3d 1192
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony J. PETERKIN Sr., Appellant.
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 1192

23 N.Y.S.3d 719

The PEOPLE of the State of New York, Respondent,

v.Anthony J. PETERKIN Sr., Appellant.

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

Jan. 21, 2016.

Susan Patnode, Rural Law Center of New York, Albany (Cynthia Feathers of counsel), for appellant.

Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and CLARK, JJ.

PETERS, P.J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered August 28, 2014, 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 was indicted for criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree stemming from his sale of crack cocaine to a confidential informant (hereinafter CI) during a controlled buy. Following a jury trial, at which defendant testified in support of his agency defense, defendant was convicted as charged and sentenced as a second felony offender to concurrent 10–year prison terms. He appeals.

Defendant contends that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence, specifically claiming that the People failed to disprove his agency defense beyond a reasonable doubt. His challenge to the legal sufficiency of the evidence is unpreserved for our review inasmuch as he presented evidence after his unsuccessful motion to dismiss and failed to renew that motion at the close of all proof (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ; People v. Robinson, 123 A.D.3d 1224, 1225, 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] ). Nevertheless, we necessarily determine whether the agency defense was disproven in the context of our weight of the evidence review (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Robinson, 123 A.D.3d at 1225, 999 N.Y.S.2d 555 ; People v. Vanderhorst, 117 A.D.3d 1197, 1198, 984 N.Y.S.2d 688 [2014], lv. denied 24 N.Y.3d 1089, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014] ).

"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. Kramer, 118 A.D.3d 1040, 1041, 989 N.Y.S.2d 143 [2014], quoting 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]; see People v. Echevarria, 21 N.Y.3d 1, 20, 966 N.Y.S.2d 747, 989 N.E.2d 9 [2013] ). "[W]hether the defendant was a seller, 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. 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] ; see People v. Vanguilder, 130 A.D.3d 1247, 1248–1249, 14 N.Y.S.3d 532 [2015] ; People v. Nowlan, 130 A.D.3d 1146, 1147, 13 N.Y.S.3d 646 [2015] ). The jury may consider a number of factors in assessing whether the defendant acted solely to accommodate the buyer, including "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. Robinson, 123 A.D.3d at 1226, 999 N.Y.S.2d 555 ; see People v. Kramer, 118 A.D.3d at 1041–1042, 989 N.Y.S.2d 143 ).

The trial evidence established that the police arranged for a controlled buy at a home in the City of Ogdensburg, St. Lawrence County that had previously been identified by the CI as a location where drugs were being sold. Once there, the CI encountered one of the owners of the home and asked him "if there's anything going on," which she intended as a drug reference. This individual responded affirmatively and pointed to defendant, whom the CI recognized from previous visits to the subject home during which the two smoked crack together. The CI then handed defendant the buy money, and defendant proceeded up a set of stairs to an upper story of the home. When he returned, defendant handed the CI a bag containing a white substance that later tested positive for cocaine. Defendant admitted that he procured the crack cocaine for the CI on the day in question, but claimed that he did so as a favor to the CI and that he neither controlled the drugs nor profited from the transaction. Defendant explained...