Summary
concluding that "[w]hether defendant was a seller of narcotics or merely a purchaser assisting a friend presented a factual issue for the jury to resolve under the circumstances of this case" (citing People v. Scott, 134 A.D.2d 379, 520 N.Y.S.2d 856 (1987))
Summary of this case from State v. DavalosOpinion
December 21, 1990
Appeal from the Cattaraugus County Court, Dillon, J.
Present — Denman, J.P., Boomer, Pine, Balio and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant was convicted, after a jury trial, of criminal sale of a controlled substance in the second degree, two counts of criminal sale of a controlled substance in the third degree, and three counts of criminal possession of a controlled substance in the third degree in connection with his sale of cocaine to an undercover police officer on three separate occasions.
Defendant's claim that he was deprived of effective assistance of counsel lacks merit. Upon our review of the record, we conclude that the evidence, the law and the circumstances of this case, viewed together and as of the time of representation, reveal that defendant's attorney provided meaningful representation (see, People v. Satterfield, 66 N.Y.2d 796, 798-799; People v. Baldi, 54 N.Y.2d 137, 146-147).
Defendant failed to preserve for our review his claim that he was deprived of a fair trial by prosecutorial misconduct during summation because he did not object to the alleged improper remarks (see, CPL 470.05). We decline to review this issue in the interest of justice (cf., People v. Montalvo, 125 A.D.2d 338).
We reject defendant's contention that the People failed to disprove beyond a reasonable doubt that he was acting solely as an agent of the purchaser (see, People v. Argibay, 45 N.Y.2d 45, 53-54, cert. denied sub nom. Hahn-DiGuiseppe v. New York, 439 U.S. 930; People v. Torres, 150 A.D.2d 816, lv. denied 74 N.Y.2d 820; People v. Scott, 134 A.D.2d 379, 380, lv. denied 70 N.Y.2d 937). Whether defendant was a seller of narcotics or merely a purchaser assisting a friend presented a factual issue for the jury to resolve under the circumstances of this case (see, People v. Scott, supra, at 380). Defendant's agency defense rested on the credibility of defendant's testimony that he made no profit from the transactions and that he was only doing a favor for an undercover police officer who purchased the cocaine. Because the jury found defendant guilty, it can reasonably be assumed that defendant's testimony was not credited and "credibility is a matter to be determined by the trier of the facts" (People v. Malizia, 62 N.Y.2d 755, 757, cert. denied 469 U.S. 932). Moreover, in our view, the evidence, viewed in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), was legally sufficient to establish defendant's guilt beyond a reasonable doubt.
The trial court erred in ordering that the sentences for the three counts of criminal possession of a controlled substance in the third degree should run consecutive to the sentences for second and third degree criminal sale of a controlled substance because the possession counts arose out of the same criminal acts as the sale counts. Thus, we make those sentences run concurrently. We decline to exercise our discretion to dismiss the concurrent noninclusory possession counts (see, CPL 300.40 [a]).
We have reviewed defendant's remaining contentions and find them to be either unpreserved for our review or, where preserved, lacking in merit.