Opinion
73 1137/13.
02-02-2016
The PEOPLE of the State of New York, Respondent, v. Wilfredo CINTRON, Defendant–Appellant.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jeffrey A. Wojcik of counsel), for respondent.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jeffrey A. Wojcik of counsel), for respondent.
Opinion
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered June 19, 2014, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender, to a term of two years, unanimously affirmed.
The verdict, which rejected defendant's agency defense, was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 2007 ). There is no basis for disturbing the jury's credibility determinations. The evidence does not warrant the conclusion that defendant was doing a “favor” for a total stranger (see People v. Lam Lek Chong, 45 N.Y.2d 64, 75, 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 ). Among other things, the evidence provided no explanation “as to why the [purchaser] needed or wanted to be represented by an ‘agent’ instead of simply buying his own drugs” (People v. Vaughan, 300 A.D.2d 104, 104, 750 N.Y.S.2d 846 2002, lv. denied 99 N.Y.2d 633, 760 N.Y.S.2d 115, 790 N.E.2d 289 2003 ).
The court properly denied defendant's motion to dismiss the indictment, made on the ground that he was deprived of his right to testify before the grand jury when, against defendant's wishes, his counsel withdrew defendant's notice of intent to testify. We decline to revisit our prior holdings (see People v. Brown, 116 A.D.3d 568, 983 N.Y.S.2d 725 1st Dept.2014, lv. denied 24 N.Y.3d 1001, 997 N.Y.S.2d 119, 21 N.E.3d 571 2014; People v. Santiago, 72 A.D.3d 492, 898 N.Y.S.2d 41 1st Dept.2010, lv. denied 15 N.Y.3d 757, 906 N.Y.S.2d 830, 933 N.E.2d 229 2010 ) that the right to testify before the grand jury is not among the rights reserved to a defendant, but is among the rights whose exercise is a strategic decision requiring “the expert judgment of counsel” (People v. Colville, 20 N.Y.3d 20, 32, 955 N.Y.S.2d 799, 979 N.E.2d 1125 2012 ).