People v. Rotundo

• Decision Date: 17 June 1993
• Citation: 194 A.D.2d 943,599 N.Y.S.2d 322
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard D. ROTUNDO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 322

599 N.Y.S.2d 322

94 A.D.2d 943

The PEOPLE of the State of New York, Respondent, v. Richard D. ROTUNDO, Appellant.

Supreme Court, Appellate Division Third Department.

June 17, 1993.

Jill A. Clarke, Massena, for appellant.

Richard V. Manning, Dist. Atty. (Donald S. Thomson, of counsel), Canton, for respondent.

Before MIKOLL, J.P., and LEVINE, MAHONEY, CASEY and HARVEY, JJ.

LEVINE, Justice.

Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered May 11, 1992, upon a verdict convicting defendant of the crime of criminal sale of marihuana in the third degree.

On the evening of January 4, 1991, defendant sold a bag of marihuana to a confidential police informant for $230 while two nearby State Police officers observed and electronically monitored the transaction. A State Police Crime Lab forensic scientist, Deborah Alber, testified that she conducted three different tests on the substance which confirmed it to be marihuana, and that its aggregate weight was 25.87 grams. Defendant was indicted for criminal sale of marihuana in the third degree for knowingly and unlawfully selling a substance weighing more than 25 grams containing marihuana (Penal Law § 221.45) and, after a jury trial, found guilty as charged and sentenced to a determinate term of incarceration of one year. Defendant now appeals.

Defendant's first contention for reversal is that the jury's verdict was against the weight of the evidence and not supported by legally sufficient evidence in that the evidence showed that defendant was merely acting as the informant-buyer's agent. One who acts solely as the agent of the buyer in procuring drugs for the buyer is not, of course, guilty of selling the drugs to the buyer, but may be guilty of possession of the drugs (see, People v. Lam Lek Chong, 45 N.Y.2d 64, 73-74, 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). Whether defendant was the agent of the buyer was ultimately a question of fact for the jury to resolve (see, People v. Rodriguez, 53 N.Y.2d 991, 993, 441 N.Y.S.2d 672, 424 N.E.2d 559; People v. Lam Lek Chong, supra, 45 N.Y.2d at 74-75, 407 N.Y.S.2d 674, 379 N.E.2d 200; see also, People v. Andujas, 79 N.Y.2d 113, 117-118, 580 N.Y.S.2d 719, 588 N.E.2d 754).

The testimony was that the informant, while test driving a car, shared defendant's marihuana cigarette with him and asked if defendant could get an ounce of that "crop" of marihuana for him. The informant called defendant approximately one week later and arranged to make the purchase the next day. The transaction was completed, as scheduled, in the informant's car outside defendant's home for a simultaneous payment to defendant of $230 cash in exchange for a bag of marihuana. Defendant declined the informant's subsequent requests to purchase drugs. However, defendant's conduct in allowing the informant to sample the crop allowed the jury to infer that defendant was representing the quality of the marihuana (see, People v. Roche, 45 N.Y.2d 78, 85, 407 N.Y.S.2d 682, 379 N.E.2d 208, cert. denied 439 U.S. 958, 99 S.Ct. 359, 58 L.Ed.2d 350). Defendant's ability to supply a fairly substantial quantity of marihuana without a cash advance, but in a direct exchange of cash for drugs, also supports the inference that he was acting as an entrepreneur rather than as the informant's agent (see, id.; see also, People v. Lam Lek Chong, supra, 45 N.Y.2d at 75, 407 N.Y.S.2d 674, 379 N.E.2d 200).

Viewing the evidence in a light most favorable to the People, and weighing the relative probative force of the testimony and giving deference to the jury's determination of a question of fact, we conclude that the People proved beyond a reasonable doubt that defendant was acting as a seller rather than as an agent for the informant-buyer in procuring the marihuana, and that the jury's verdict was supported by the weight of the credible evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; People v. Walton, 119 A.D.2d 889, 500 N.Y.S.2d 844, lv. denied 67 N.Y.2d 1058, 504 N.Y.S.2d 1035, 495 N.E.2d 368). Further, defendant waived appellate review of the jury charge regarding the definition of the term "sale" and the agency defense by failing to object (see, People v. Longo, 182 A.D.2d 1019, 582 N.Y.S.2d 832, lv. denied 80 N.Y.2d 906, 588 N.Y.S.2d 831, 602 N.E.2d 239). In any event, the charge defining "sell" mirrored the statutory definition (see, Penal Law § 220.00[1] and the lengthy charge regarding the agency defense was consistent with the case law and pattern jury instructions (see, 3 CJI [NY], PL art. 220, at 1749-1754).

Defendant's next contention for reversal is that his mistrial motion should have been granted because he was severely prejudiced by the prosecutor's questions of the State Trooper who had monitored the drug transaction; these questions referred to a cassette tape containing a recording of that transaction and the prosecutor had represented prior to trial that she would not attempt to introduce the tape or a transcript thereof at trial. While the prosecutor made those assurances prior to trial in response to defendant's request for an audibility hearing, the record reflects that she did not, in fact, attempt to introduce the tape but merely attempted to mark it as an exhibit during the State Trooper's testimony. The prosecutor had already elicited from that witness, in the course of his narrative of the transaction and without objection from defendant, the fact that he had monitored and tape recorded the transaction and had recovered the tape as evidence. When the prosecutor attempted to have the tape marked as an exhibit, defendant objected; County Court thereafter ordered the prosecutor to withdraw it as an exhibit, instructed the jury that the parties had agreed that the tape would not be received in...