Opinion
01-19-2016
The PEOPLE of the State of New York, Respondent, v. Luis GASTON, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), and Jones Day, New York (Laura Jean Eichten of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Natalia Bedoya–McGinn of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), and Jones Day, New York (Laura Jean Eichten of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Natalia Bedoya–McGinn of counsel), for respondent.
TOM, J.P., FRIEDMAN, SAXE, KAPNICK, JJ.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered October 26, 2011, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of 7 ½ 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. Even under the version of the facts reflected in defendant's testimony, the evidence supports the conclusion that the heroin defendant received was not an "incidental benefit" for performing a "favor," (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] ), but was defendant's primary motivation for obtaining heroin for the undercover purchaser (see e.g. People v. Abdallah, 112 A.D.3d 415, 975 N.Y.S.2d 673 [1st Dept.2013], lv. denied 22 N.Y.3d 1086, 981 N.Y.S.2d 672, 4 N.E.3d 974 [2014] ; People v. Sanchez, 35 A.D.3d 161, 825 N.Y.S.2d 460 [1st Dept.2006], lv. denied 8 N.Y.3d 949, 836 N.Y.S.2d 560, 868 N.E.2d 243 [2007] ).
Defendant was not prejudiced by a remark in the prosecutor's opening statement that allegedly asserted a theory that was at variance with the indictment. Even assuming, without deciding, the existence of such a variance, it did not deprive defendant of a fair trial. Although defendant asserts that the allegedly improper theory "pervaded" the case, we conclude that the trial evidence, the prosecutor's summation, the court's charge, and the jury's verdict were all consistent with the theory of the indictment as defendant interprets it (see People v. Davis, 256 A.D.2d 200, 201–202, 683 N.Y.S.2d 502 [1st Dept.1998], lv. denied 93 N.Y.2d 898, 689 N.Y.S.2d 710, 711 N.E.2d 986 [1999] ).
Defendant was not deprived of a fair trial by the People's summation. The prosecutor did not shift the burden of proof by commenting on the lack of evidence to corroborate defendant's testimony (see e.g. People v. Williams, 103 A.D.3d 442, 958 N.Y.S.2d 902 [1st Dept.2013], lv. denied 21 N.Y.3d 915, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013] ). The other remarks at issue were fair comments on the evidence and appropriate responses to the defense summation (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept.1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).