Opinion
(1604) KA 00-02859
December 21, 2001.
(Appeal from Judgment of Cayuga County Court, Corning, J. — Criminal Sale Controlled Substance, 3rd Degree.)
PRESENT: GREEN, J.P., PINE, HURLBUTT, KEHOE AND GORSKI, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him of two counts each of criminal sale of a controlled substance in the third degree (Penal Law § 220.39), criminal possession of a controlled substance in the third degree (Penal Law § 220.16), and conspiracy in the fourth degree (Penal Law § 105.10). Contrary to defendant's contention, the evidence is legally sufficient to disprove the defense of agency. The buyer testified that she knew defendant to be a drug dealer as a result of engaging in prior drug transactions with him or observing him sell drugs to others. Those prior drug sales by defendant establish his intent, thus refuting the defense of agency ( see, People v. Evertsz, 131 A.D.2d 503, 504, lv denied 70 N.Y.2d 646; cf., People v. Brathwaite, 238 A.D.2d 125, 126, lv denied 90 N.Y.2d 891). Moreover, the People established that defendant expected and received a benefit from each sale, per his regular practice ( see, People v. Lam Lek Chong, 45 N.Y.2d 64, 74-75, cert denied 439 U.S. 935; People v. Johnson, 286 A.D.2d 622; People v. Page, 260 A.D.2d 153, 156, lv denied 93 N.Y.2d 928). In addition, the evidence shows an ongoing relationship between defendant and his drug supplier, or an ongoing link between defendant and the drug trade ( see, People v. Richards, 275 A.D.2d 886, 887, lv denied 96 N.Y.2d 738, citing People v. Page, supra, at 155). Finally, defendant was shown to have engaged in salesmanlike behavior that was inconsistent with an agency relationship with the buyer ( see, People v. Roche, 45 N.Y.2d 78, 85, cert denied 439 U.S. 958; People v. Watkins, 284 A.D.2d 905; People v. Richards, supra, at 887).
We reject defendant's contention that the buyer was an accomplice whose testimony requires corroboration. The buyer was acting as "an agent of police without the intent to commit a crime", and thus corroboration of her testimony was not required ( People v. Cleveland, 273 A.D.2d 787, 788, lv denied 95 N.Y.2d 864; cf., People v. Cona, 49 N.Y.2d 26, 34-35; People v. Adams, 185 A.D.2d 680, lv denied 80 N.Y.2d 926). Contrary to the further contention of defendant, he was not denied effective assistance of counsel. "[T]he evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" ( People v. Baldi, 54 N.Y.2d 137, 147; see generally, People v. Benevento, 91 N.Y.2d 708, 711-714). The sentence is not unduly harsh or severe.