Opinion
14692 Ind. No. 4514/17 Case No. 2019–1540
11-23-2021
The PEOPLE of the State of New York, Respondent, v. Jesus LARA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Shaina R. Watrous of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Meghan McLoughlin of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Shaina R. Watrous of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Meghan McLoughlin of counsel), for respondent.
Kern, J.P., Gesmer, Gonza´lez, Shulman, Higgitt, JJ.
Judgment, Supreme Court, New York County (Erika M. Edwards, J.), rendered November 13, 2018, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first and third degrees, and sentencing him to concurrent terms of 9½ years and 4 years, respectively, unanimously affirmed.
The court correctly declined to deliver an agency defense regarding the third-degree possession count, which was based on intent to sell, because there was no reasonable view of the evidence, viewed most favorably to defendant, to support such a charge (see People v. Herring, 83 N.Y.2d 780, 782, 610 N.Y.S.2d 949, 632 N.E.2d 1272 [1994] ). Although defendant was known to the confidential informant who acted as the buyer, there was no reasonable view that defendant was "merely a purchaser doing a favor for a friend" ( 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] ). Defendant, who had a relationship with the principal seller, arranged the sale of a kilogram of drugs, negotiated the price, and took part in the delivery. Defendant had also arranged a prior kilogram-sized sale, involving a different principal seller, to the informant. The fact that, in his trial testimony, defendant denied any participation in the charged transaction did not preclude an agency charge (see People v. Abdul–Aziz, 216 A.D.2d 77, 78, 628 N.Y.S.2d 272 [1st Dept. 1995], lv denied 86 N.Y.2d 788, 632 N.Y.S.2d 502, 656 N.E.2d 601 [1995] ). However, to the extent the court erred in that respect, this was only a component of the court's ultimate, correct ruling (see People v. Garrett, 23 N.Y.3d 878, 885 n. 2, 994 N.Y.S.2d 22, 18 N.E.3d 722 [2014] ) that there was no reasonable view of the evidence to support an agency charge, and that such a defense would require the jury to find facts not supported by anything in either the People's case or defendant's testimony (see People v. Lewis, 51 A.D.3d 475, 858 N.Y.S.2d 129 [1st Dept. 2008], lv denied 11 N.Y.3d 738, 864 N.Y.S.2d 397, 894 N.E.2d 661 [2008] ).
Evidence of the prior uncharged sale was properly admitted as relevant to defendant's knowledge of the nature of the substance possessed (see People v. Kirk, 16 A.D.3d 230, 790 N.Y.S.2d 669 [1st Dept. 2005], lv denied 5 N.Y.3d 790, 801 N.Y.S.2d 811, 835 N.E.2d 671 [2005] ), intent to sell drugs (see People v. Faines, 297 A.D.2d 590, 595, 747 N.Y.S.2d 484 [1st Dept. 2002], lv denied 99 N.Y.2d 558, 754 N.Y.S.2d 210, 784 N.E.2d 83 [2002] ) and relationship with the buyer (see People v. Ruiz, 166 A.D.3d 544, 545, 89 N.Y.S.3d 45 [1st Dept. 2018], lv denied 32 N.Y.3d 1209, 99 N.Y.S.3d 220, 122 N.E.3d 1133 [2019] ). Each of these issues was disputed at trial and any prejudice resulting from introduction of this evidence was minimized by the court's limiting instructions, to which defendant did not object.
We perceive no basis for reducing the sentence.