Opinion
110766
12-31-2020
The PEOPLE of the State of New York, Respondent, v. Willis S. BICKHAM Jr., Appellant.
Dennis J. Lamb, Troy, for appellant. Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.
Dennis J. Lamb, Troy, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Mulvey and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Mulvey, J. Defendant was charged by indictment with two counts each of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, stemming from controlled buys of heroin that occurred on two consecutive days. To resolve defendant's pretrial omnibus motion, County Court reviewed the grand jury minutes and dismissed the two counts charging criminal possession of a controlled substance in the third degree, finding that the People incorrectly instructed the grand jury that the agency defense did not apply to the possession counts. Following a bench trial, defendant was convicted of both counts of criminal sale of a controlled substance in the third degree. After denying defendant's CPL 330.30 motion to set aside the guilty verdict, the court sentenced him, as a second felony drug offender, to concurrent prison terms of five years, followed by three years of postrelease supervision. Defendant appeals.
The verdict is not against the weight of the evidence. "A weight of the evidence review requires this Court to first determine whether, based on all the credible evidence, a different finding would not have been unreasonable" ( People v. Forney, 183 A.D.3d 1113, 1113–1114, 124 N.Y.S.3d 732 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 397, 152 N.E.3d 1198 [2020] ; see People v. Benjamin, 183 A.D.3d 1125, 1126, 123 N.Y.S.3d 770 [2020] ). Where a different verdict would not have been unreasonable, this Court must "view the evidence in a neutral light and weigh the conflicting testimony, assess the rational inferences to be drawn from that testimony and determine whether the [trier of fact] was justified in finding that the elements of the crime were proven beyond a reasonable doubt" ( People v. Cole, 177 A.D.3d 1096, 1097, 114 N.Y.S.3d 132 [2019], lv denied 34 N.Y.3d 1015, 114 N.Y.S.3d 755, 138 N.E.3d 484 [2019] ; see People v. Callahan, 186 A.D.3d 943, 943–944, 128 N.Y.S.3d 370 [2020] ). In making this assessment, we give great deference to the factfinder's credibility assessments, based on the factfinder's "opportunity to view the witnesses, hear the testimony and observe demeanor" ( People v. Cole, 177 A.D.3d at 1097, 114 N.Y.S.3d 132 [internal quotation marks and citation omitted]; see People v. Benjamin, 183 A.D.3d at 1126, 123 N.Y.S.3d 770 ).
As relevant here, to convict defendant of criminal sale of a controlled substance in the third degree, the People were required to establish that he knowingly and unlawfully sold a narcotic drug (see Penal Law § 220.39[1] ). Where a defendant raises an agency defense, the People must prove that the defendant did not act "solely as the agent of a buyer" ( 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]; accord People v. Vickers, 168 A.D.3d 1268, 1269, 92 N.Y.S.3d 473 [2019], lvs denied 33 N.Y.3d 1028, 1036, 102 N.Y.S.3d 536, 126 N.E.3d 186 [2019] ). 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. Watson, 20 N.Y.3d at 185, 957 N.Y.S.2d 669, 981 N.E.2d 265 [internal quotation marks and citation omitted]; accord People v. Kramer, 118 A.D.3d 1040, 1041, 989 N.Y.S.2d 143 [2014] ; People v. Vickers, 168 A.D.3d at 1270, 92 N.Y.S.3d 473 ). "[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the [trier of fact] 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 [1978], cert denied 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331 [1978] ; accord People v. Kramer, 118 A.D.3d at 1041, 989 N.Y.S.2d 143 ), including factors such as "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. Peterkin, 135 A.D.3d 1192, 1192–1193, 23 N.Y.S.3d 719 [2016] ; see People v. Gallo, 135 A.D.3d 982, 984, 22 N.Y.S.3d 262 [2016] ). "Notably, profit need not be pecuniary and includes transactions in which a defendant stands to benefit from the underlying sale in other ways, including getting cheaper or free drugs for himself or herself" ( People v. Vickers, 168 A.D.3d at 1272, 92 N.Y.S.3d 473 [internal quotation marks, brackets and citation omitted]; see People v. Robinson, 123 A.D.3d 1224, 1226, 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] ).
County Court heard testimony from an undercover officer who twice gave money to defendant and received heroin from him, another officer who observed the transactions from a distance and defendant himself. A video and audio recording of each transaction was admitted into evidence and the parties stipulated to admission of documents establishing that the substance exchanged was heroin. In his testimony, defendant admitted that he engaged in text message conversations with the undercover officer, they met in person, and on two different days the officer gave defendant money, defendant left for a short period of time, then he returned and handed the officer heroin. Therefore, the only question is whether the agency defense applies.
The officer and defendant had no prior relationship; they were introduced by an informant one day prior to the first recorded transaction involving the officer, at the time of a transaction in which defendant provided drugs to the informant. Defendant testified that he is not a drug dealer, but is only an addict who would act as a runner or middleman to obtain drugs for others in hopes that they, in appreciation of the favor, would give him a portion of the drugs for his own use. Although he did not demand or ask for part of the drugs, his hope or expectation of something in return for his efforts may, alone, be sufficient to defeat the agency defense (see People v. Vickers, 168 A.D.3d at 1272, 92 N.Y.S.3d 473 ; People v. Robinson, 123 A.D.3d at 1226, 999 N.Y.S.2d 555 ). In any event, the officer's testimony and the recordings showed that defendant asserted, more than once, that he owned the drugs that would be given to the officer. Defendant did not deny having made such statements, but testified that he lied to the officer about his ownership of the drugs because he was trying to prevent the officer from seeking other sources of drugs, and that addicts will say anything to get high. Although a different result would not have been unreasonable, when the proof is viewed as a whole, and accepting County Court's credibility assessments that necessarily favored the People's witnesses, the record establishes that the court's rejection of the agency defense – and, thus, its determination that defendant acted as a seller, rather than an agent of the buyer – is not against the weight of the evidence (see People v. Peterkin, 135 A.D.3d at 1193, 23 N.Y.S.3d 719 ; People v. Johnson, 91 A.D.3d 1115, 1117, 939 N.Y.S.2d 575 [2012], lv denied 18 N.Y.3d 959, 944 N.Y.S.2d 487, 967 N.E.2d 712 [2012] ).
County Court did not err in partially denying defendant's motion to dismiss the indictment based upon the grand jury instructions. A review of the grand jury minutes reveals that the People instructed the grand jury on the agency defense in connection with the two sale counts. Defendant's contention that the People failed to charge the grand jury with a lesser included offense is unpreserved, as he did not raise that argument in his pretrial motion (see People v. Sheltray, 244 A.D.2d 854, 854, 665 N.Y.S.2d 224 [1997], lv denied 91 N.Y.2d 897, 669 N.Y.S.2d 12, 691 N.E.2d 1038 [1998] ; see generally People v. Coleman, 4 A.D.3d 677, 678, 773 N.Y.S.2d 146 [2004], lv denied 2 N.Y.3d 797, 781 N.Y.S.2d 296, 814 N.E.2d 468 [2004] ).
Defendant also did not preserve his argument concerning County Court's Sandoval ruling. When defendant's testimony raised the agency defense, the People moved to reopen the Sandoval hearing to permit them to introduce evidence of defendant's prior drug-related convictions. Inasmuch as defendant limited his objections to the remoteness of those convictions, he failed to preserve his present argument that the prejudicial effect of those convictions outweighed their probative value (see People v. Abrams, 73 A.D.3d 1225, 1227, 900 N.Y.S.2d 489 [2010], affd 17 N.Y.3d 760, 929 N.Y.S.2d 30, 952 N.E.2d 1022 [2011] ; see also People v. Quintana, 159 A.D.3d 1122, 1127–1128, 71 N.Y.S.3d 752 [2018], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ). In any event, courts often permit evidence of prior crimes related to drug activity to rebut the agency defense and establish the defendant's intent to sell (see e.g. People v. Sidberry, 159 A.D.3d 486, 487, 72 N.Y.S.3d 65 [2018], lv denied 31 N.Y.3d 1087, 79 N.Y.S.3d 109, 103 N.E.3d 1256 [2018] ; People v. Nowlan, 130 A.D.3d 1146, 1146, 13 N.Y.S.3d 646 [2015] ; People v. Lee, 129 A.D.3d 1295, 1297–1298, 13 N.Y.S.3d 581 [2015], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 111, 59 N.E.3d 1223 [2016] ; People v. Poole, 79 A.D.3d 1685, 1687, 917 N.Y.S.2d 775 [2010], lv denied 16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 [2011] ; People v. Deale, 26 A.D.3d 175, 176, 808 N.Y.S.2d 682 [2006], lv denied 6 N.Y.3d 893, 817 N.Y.S.2d 628, 850 N.E.2d 675 [2006] ; People v. Lauderdale, 243 A.D.2d 760, 761, 662 N.Y.S.2d 860 [1997], lv denied 91 N.Y.2d 875, 668 N.Y.S.2d 574, 691 N.E.2d 646 [1997] ; see also People v. Valentin, 29 N.Y.3d 150, 156, 53 N.Y.S.3d 592, 75 N.E.3d 1153 [2017] ), and the risk of prejudice was reduced in this bench trial, because the court is less likely than a jury to infer propensity from a defendant's prior criminal history.
County Court did not err in denying defendant's CPL article 330 motion to set aside the verdict, which was based on the court's failure to order a mental health examination. CPL 330.30(1) provides that, "[a]t any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon ... [a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." "Since a trial court lacks this Court's interest of justice jurisdiction, its power is far more limited, and it may only grant a CPL 330.30(1) motion where the error alleged has been preserved by a proper objection at trial" ( People v. Sudol, 89 A.D.3d 499, 499–500, 932 N.Y.S.2d 49 [2011] [citation omitted]; see People v. Kachadourian, 184 A.D.3d 1021, 1028, 126 N.Y.S.3d 786 [2020], lv denied 35 N.Y.3d 1113, 133 N.Y.S.3d 533, 158 N.E.3d 550 [2020] ; People v. Smith, 89 A.D.3d 1126, 1131, 933 N.Y.S.2d 413 [2011], lv denied 18 N.Y.3d 962, 944 N.Y.S.2d 491, 967 N.E.2d 716 [2012] ). Defendant did not raise the issue of competency to stand trial in a pretrial motion or during trial, rendering the argument unpreserved (see People v. Kachadourian, 184 A.D.3d at 1028–1029, 126 N.Y.S.3d 786 ).
To the extent that defendant is arguing that County Court should have sua sponte ordered a mental health examination based on information in the record – and, thus, that no preservation was required – we find the argument to be without merit. "[A] defendant is presumed to be competent, and ... is not entitled, as a matter of right, to have the question of his [or her] capacity to stand trial passed upon before the commencement of the trial, if the court is satisfied from the available information that there is no proper basis for questioning the defendant's sanity" ( People v. Tortorici, 92 N.Y.2d 757, 765, 686 N.Y.S.2d 346, 709 N.E.2d 87 [1999] [internal quotation marks and citations omitted], cert denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 [1999] ; see CPL 730.10, 730.30 ; People v. Yu–Jen Chang, 92 A.D.3d 1132, 1134, 939 N.Y.S.2d 596 [2012] ). "A history of mental illness and drug abuse does not in itself call into question a defendant's competence to stand trial" ( People v. Duffy, 119 A.D.3d 1231, 1233, 990 N.Y.S.2d 346 [2014] [internal quotation marks, brackets and citations omitted], lv denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014] ; see People v. Park, 159 A.D.3d 1132, 1133, 72 N.Y.S.3d 242 [2018], lv denied 31 N.Y.3d 1085, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ; People v. Kot, 126 A.D.3d 1022, 1024, 4 N.Y.S.3d 714 [2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 525, 37 N.E.3d 1168 [2015] ). Further, it weighs against a finding of incompetency to stand trial that "[a]t no time during the ... proceeding did defense counsel, who was in the best position to assess defendant's capacity, raise the issue of defendant's fitness to proceed or request an examination pursuant to CPL 730.30" ( People v. Gelikkaya, 84 N.Y.2d 456, 460, 618 N.Y.S.2d 895, 643 N.E.2d 517 [1994] ; accord People v. Park, 159 A.D.3d at 1134, 72 N.Y.S.3d 242 ). In denying defendant's motion, County Court noted – and the record confirms – that, although defendant testified that he was diagnosed in 2016 with bipolar disorder and schizophrenia, he was able to answer "all questions posed to him in a cogent and understandable manner," he "had a complete recall of the events that [led] to his arrest and prosecution," and none of his three different attorneys nor defendant himself hinted at any indication or reasonable ground to believe that he was incapable of understanding the proceedings against him or that an examination of his mental health should be conducted. Hence, the court did not abuse its discretion in denying defendant's motion.
Finally, County Court imposed prison terms that were less than half the statutory maximum (see Penal Law § 70.70[3][b][i] ) and ran them concurrently. Considering defendant's admissions to participating in the drug transactions at issue and his extensive criminal history, the sentence is neither harsh nor excessive (see People v. Gilmore, 177 A.D.3d 1029, 1029, 114 N.Y.S.3d 126 [2019], lvs denied 35 N.Y.3d 970, 125 N.Y.S.3d 44, 148 N.E.3d 508 [2020]; People v. Cole, 150 A.D.3d 1476, 1482–1483, 52 N.Y.S.3d 744 [2017], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 428, 108 N.E.3d 502 [2018] ).
Garry, P.J., Lynch, Clark and Reynolds Fitzgerald, JJ., concur. ORDERED that the judgment is affirmed.