People v. Satloff

• Decision Date: 22 June 1981
• Citation: 82 A.D.2d 896,441 N.Y.S.2d 96
• Parties: The PEOPLE, etc., Respondent, v. Michael SATLOFF, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 96

441 N.Y.S.2d 96

82 A.D.2d 896

The PEOPLE, etc., Respondent, v. Michael SATLOFF, Appellant.

Supreme Court, Appellate Division Second Department.

June 22, 1981.

Rudnick & Sheps, New York City (Howard Rudnick, New York City, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (Lawrence J. Schwarz and William C. Donnino, Asst. Dist. Attys., Mineola, of counsel), for respondent.

Before LAZER, J. P., and GIBBONS, GULOTTA and COHALAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Nassau County, rendered May 31, 1979, convicting him of criminal sale of a controlled substance in the sixth degree, upon a jury verdict, and imposing sentence.

Judgment affirmed. This case is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (subd. 5).

On October 25, 1977 the appellant made arrangements with one Seth Marcus to sell a designated quantity of "ups" or stimulants at Marcus' apartment that evening. Appellant was not aware that Marcus had been arrested for selling narcotics and the purchasers were two undercover police officers, Anderson and Giglio. Upon arrival appellant was introduced to Anderson and Giglio and he asked if they were the persons who wanted the "ups". They replied they were and Giglio asked to see them. Appellant produced a plastic baggie containing 100 white tablets which subsequently proved to be phenobarbital, a depressant not a stimulant. The selling price was $35 for the 100 pills. Giglio asked if he and Anderson could split the purchase and the appellant agreed. Anderson and appellant counted out 50 tablets which were placed in a second plastic baggie. Anderson and Giglio were each given a bag containing 50 tablets and each gave appellant $17. Anderson then inquired if appellant could get cocaine. Appellant said he could. The officers then left.

On November 29, 1977 a second arrangement was made to sell Anderson cocaine. Appellant was picked up at his home by Giglio, Anderson and Marcus and was driven to a certain location where he was to purchase 1/2 gram of cocaine. After appellant told Anderson he had no money, Anderson gave the appellant $45 to make the purchase. The appellant exited the car and returned five minutes later with a tin foil packet containing a white powder substance which later proved to be cocaine. He handed the packet to Anderson, who opened it to look at the substance. Anderson asked the appellant if he was taken care of and appellant replied "very well". The appellant was driven home. Appellant was subsequently importuned by Marcus, Giglio and Anderson to procure cocaine transactions but none were arranged. The appellant was arrested and charged with six criminal counts. The first three counts, pertaining to cocaine, charged appellant with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree (possession with the intent to sell), and criminal possession of a controlled substance in the seventh degree (simple possession). Counts four and five, pertaining to phenobarbital, charged appellant with the criminal sale of a controlled substance in the sixth degree to "John Doe" and "Richard Roe", respectively. Count six charged appellant with the criminal possession of a controlled substance in the sixth degree (phenobarbital). At his jury trial, the appellant asserted the affirmative defenses of entrapment and agency. The appellant was acquitted on all charges stemming from the cocaine transaction as well as the criminal sale of phenobarbital to "Richard Roe" (Giglio) in count five. The jury returned a verdict of guilty of criminal sale of phenobarbital to "John Doe" (Anderson) and possession with intent to sell phenobarbital. The court dismissed the criminal possession charge on count six as an inclusory concurrent count (see CPL 220.20, subd. 1, par. 300.40, subd. 3, par. The appellant was sentenced to a determinate sentence of one year, which has been stayed pending appeal.

On appeal, appellant primarily asserts that the finding of guilty on count four is inconsistent and repugnant to a finding of innocence on count five. Counts four and five do charge appellant with the same offense. However, the former requires that appellant be found to have sold phenobarbital to Anderson, whereas the latter requires the appellant to have sold phenobarbital to Giglio. Thus, two independent fact findings were required. The first question presented is whether the findings were inconsistent. Anderson and the appellant testified that the two sales were in fact made at the same time to Giglio and Anderson. It is therefore difficult to reconcile the finding that the appellant sold to Anderson and not Giglio. Nor can it be clearly said in this case that the jury accepted only part of the testimony of the People's witnesses and rejected the testimony pertaining to the sale to Giglio (see People v. Price, 67 A.D.2d 990, 991, 413 N.Y.S.2d 423), as the appellant himself testified to giving 50 pills to Giglio and accepting $17 from him. On the basis of the record the findings are inconsistent. However, to mandate a reversal apparently inconsistent findings must be repugnant and not merely inconsistent (People v. Bullis, 30 A.D.2d 470, 472, 294 N.Y.S.2d 331). "a rational theory for their existence, apparently inconsistent verdicts will be held repugnant when the crimes upon which the verdicts are returned are either identical as to each of their elements or so related that an acquittal on one negatives an essential element of the crimes upon which there was conviction" (People v. Dercole, 72 A.D.2d 318, 333, 424 N.Y.S.2d 459, app.dsmd. 52 N.Y.2d 956, 437 N.Y.S.2d 966, 419 N.E.2d 869). The crimes charged in counts four and five cannot be labeled identical as two sales to two separate purchasers clearly mark their distinction. Nor does the refusal by the jury to find that the appellant sold phenobarbital to Giglio negative any element of the charged criminal sale to Anderson. Thus the findings, while inconsistent, do not reach the level of repugnancy.

Appellant also asserts that the Trial Judge erred in instructing the jury on knowledge and agency. The agency charge was a proper statement of the law and appellant's claim is without merit as the court clearly instructed that the appellant could be an agent and receive personal or financial benefit from the principal (see People v. Lam Lek Chong, 45 N.Y.2d 64, 407 N.Y.S.2d 674, 379 N.E.2d 200; People v. Davis, 72 A.D.2d 798, 421 N.Y.S.2d 628). Nor can it be said that the failure to marshall the facts in charging knowledge constituted reversible error on the basis of this record (see People v. Vargas, 74 A.D.2d 859, 425 N.Y.S.2d 370).

Finally on the basis of the appellant's numerous prior arrests this court rejects the contention that the one year sentence imposed upon the appellant was unduly harsh and an abuse of the trial court's discretion (see People v. Miller, 74 A.D.2d 961, 425 N.Y.S.2d 895).

GIBBONS, GULOTTA and COHALAN, JJ., concur.

LAZER, J. P., dissents and votes to reverse the judgment and dismiss the indictment, with the following memorandum:

I dissent and vote to reverse the judgment of conviction and dismiss the indictment on constraint of the repugnancy rule in this State. The jury's apparent effort to fashion a just result seems to have fallen afoul of that rule.

Through a middleman, the defendant agreed to meet two individuals--later identified as narcotics officers--who were said to be interested in purchasing illicit drugs. At the designated time and place, defendant met with the pair and produced for their inspection a plastic bag containing 100 white tablets, which subsequently proved to be phenobarbital. The asking price was set at $35 for the lot. One of the purchasers suggested that defendant divide the quantity into two lots of 50 so that each could buy part. Defendant acceded to the request and, with the help of one of the purchasers, divided the tablets into two groups of 50. Having accomplished this, defendant handed each man a bag of 50 tablets and received $17 from each in return.

After a subsequent unrelated cocaine transaction, defendant was arrested and charged in a six-count indictment with various crimes related to the cocaine and pill transactions. The fourth and fifth counts of the indictment charged defendant with the knowing and unlawful sale of phenobarbital, one count alleging a sale to "John Doe" and the other alleging a sale to "Richard Roe". The fictitious individuals were, of course, the undercover narcotics officers to whom defendant had made the sales.

The testimony of the defendant and the officers meshed in their recitals of the transactions forming the bases for the fourth and fifth counts of the indictment, particularly as to the fact that both sales were simultaneous and without material distinction apart from the difference in purchasers. Indeed, one of the officers conceded that he individually had sufficient funds to purchase all 100 pills but that the motivating factor behind splitting the drugs between the two officers was their desire "to get two buys instead of one."

In the face of this singularly consistent testimony, the jury found defendant guilty of the sale to "John Doe", but acquitted him of the sale to "Richard Roe". The trial court refused to upset the verdicts returned despite defense counsel's prompt motion to set them aside as inconsistent (see CPL 330.30, subd. 1).

The defendant's primary contention on appeal is that the finding of guilt on the first of the sale counts was repugnant to the acquittal on the other. A claim of repugnancy in verdicts is a claim of trial...