Opinion
02-25-2016
The PEOPLE of the State of New York, Respondent, v. Marcus CULBERT, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Rachel T. Goldberg of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Rachel T. Goldberg of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.
ACOSTA, J.P., RENWICK, ANDRIAS, MOSKOWITZ, JJ.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J. at dismissal motion; Robert M. Stolz, J. at jury trial and sentencing), rendered November 20, 2013, as amended December 11, 2013, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to an aggregate term of seven years, unanimously affirmed. Defendant's motion to dismiss the indictment, based on a claim that he was deprived of his right to testify before the grand jury, was properly denied. The People fulfilled their obligation of providing defendant with a reasonable opportunity to testify, and his failure to do so resulted from his seriously disruptive and abusive conduct, which raised valid safety concerns (see People v. Johnson, 128 A.D.3d 412, 10 N.Y.S.3d 4 [1st Dept.2015] ; People v. Davis, 287 A.D.2d 376, 732 N.Y.S.2d 1 [1st Dept.2001], lv. denied 97 N.Y.2d 680, 738 N.Y.S.2d 296, 764 N.E.2d 400 [2001] ; People v. Dunn, 248 A.D.2d 87, 685 N.Y.S.2d 648 [1st Dept.1998], appeal withdrawn 93 N.Y.2d 1002, 695 N.Y.S.2d 748, 717 N.E.2d 1085 [1999] ). The People were not required to delay the grand jury proceeding in the hope that defendant's behavior might improve.
The verdict was based on legally sufficient evidence and 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 supports the conclusion that defendant participated in a drug transaction by acting as a steerer.In this case where the principal issue was accessorial liability, the court properly admitted expert testimony regarding the roles of participants in street level drug sales. This evidence was relevant to explain the role of a steerer and the absence of drugs or buy money on defendant's person (see People v. Jamison, 103 A.D.3d 537, 538, 959 N.Y.S.2d 490 [1st Dept.2013], lv. denied 21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013] ), and it came within the permissible bounds for this type of testimony (see generally People v. Brown, 97 N.Y.2d 500, 505–507, 743 N.Y.S.2d 374, 769 N.E.2d 1266 [2002] ). None of this testimony suggested that defendant was involved in anything larger in scale than a street-level drug operation.