People v. Redor

• Decision Date: 21 May 1990
• Citation: 555 N.Y.S.2d 870,161 A.D.2d 736
• Parties: The PEOPLE, etc., Respondent, v. Jack REDOR, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 870

555 N.Y.S.2d 870

161 A.D.2d 736

The PEOPLE, etc., Respondent, v. Jack REDOR, Appellant.

Supreme Court, Appellate Division Second Department.

May 21, 1990.

Richard Neumann, Hempstead, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Gordon S. Latz, of counsel), for respondent.

Before KOOPER, J.P., and SULLIVAN, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant (1) from a judgment of the Supreme Court, Queens County (Kellam, J.), rendered December 1, 1986, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence, and (2) by permission, from an order of the Supreme Court, Queens County (Groh, J.), dated December 16, 1988, which, after a hearing, denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of ineffective assistance of trial counsel.

ORDERED that the judgment and order are affirmed.

The defendant assails the jury's verdict finding that the People had disproved the agency defense beyond a reasonable doubt (see, Penal Law § 25.00[1] as against the weight of the credible evidence. Whether a defendant acted as an agent of the buyer or as a seller in a drug transaction is "a factual question for the jury 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, cert. denied 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331). The evidence adduced at trial establishes that the defendant exhibited salesman-like behavior in initiating the transaction between himself and the undercover officer, a stranger to him, and in volunteering to satisfy the officer's "need" for cocaine. He also revealed his familiarity with the drug trade when, in handing the vial of cocaine to the officer, he cautioned the officer to be discreet because of the police presence in the vicinity. The foregoing establishes that the defendant acted as the seller, or, at the very least, as a middleman for the seller. Upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (CPL 470.15[5].

We further conclude that the Supreme Court properly denied the defendant's motion to vacate the judgment of conviction premised on ineffective assistance of trial counsel (see, CPL 440.10). After securing a Sandoval ruling permitting the prosecutor to question the defendant solely as to the fact of his prior felony conviction, defense counsel, in his opening statement, informed the jury that in the course of testifying in support of the agency defense, his client would reveal that "he has been convicted of a crime". Ultimately, however, the defendant did not take the stand. Therefore, defense counsel pursued the agency defense through his extensive cross-examination of ...