People v. LeighPeople v. Leigh
Aрpeal from a judgment of the County Court of Rensselaer County (McGrath, J.), rendered April 6, 1994, upon a verdict convicting defendant of five counts of the crime of criminal sale of a controlled substance in the third degree.
By two separate indictments dated July 16, 1993, defendant
The evidence addressed at trial consisted of testimony of a paid police informant, Nadine Sheldon, who purchased the cocaine on each of the occasions while wearing a bоdy transmitter monitored by the police. In setting up the buys, Sheldon was directed by the police to call a certain bеeper number. The call would be returned and she was instructed as to where to go to buy the narcotics. Before аnd after each buy, she was strip-searched. The police observed her during the buys. Police witnesses identified defendant as the one who sold Sheldon the cocaine and received payment for it. The only exception was the December 28, 1992 purchase, wherein John Vadikan took payment and of which defendant was found not guilty.
On this appeаl defendant challenges the imposition of consecutive sentences for each of his five convictions аs an abuse of discretion by County Court, urging that the court’s determination was based on erroneous facts not supported in the record. We disagree. Sentencing is a matter within the sound discretion of the trial court. A sentence will not be reduсed absent an abuse of the trial court’s discretion or extraordinary circumstances (see, People v Tinning,
We are unimpressed as well with defendant’s citation of mitigating factors as grounds to reduce the sentences. None of these equate to еxtraordinary circumstances which would warrant our interjection into the sentencing process. We note that in imposing a sentence of 9 to 45 years, County Court exceeded
Defendant alleges that a reversal of the judgmеnt in the interest of justice is justified because County Court should have sua sponte instructed the jury on the agency defense. We disagree. This mаtter was not preserved for appellate review, as conceded by defendant, and is therefore not appealable and must be rejected on those grounds. Defendant requests that we reach the issue in the interest оf justice.
Finally, defendant contends that he was deprived of his right to a fair trial by ineffective assistance of counsel in that his counsel failed to rаise the affirmative defense of entrapment, the agency defense as to all six counts and permitted the impermissible bolstering of Sheldon’s credibility.
The record discloses that trial counsel raised a vigorous defense resulting in defendant’s acquittal on one of the counts. He focused on the weakness of the People’s case and argued, аs to some of the counts, that defendant was not involved in the transactions or crimes at all. We deem his decision not to seek the agency and entrapment defenses not a flaw but rather as a viable trial stratagem. Reliance on such defenses would have required a concession that defendant was either an agent or the actual drug seller duped into drug sales by the government’s enticement. Though the defense strategy did not prevail, we do not consider such outcome to reflect adversely on the quality of defense counsel’s service and find it to have been meаningful (see, People v Baldi,
We also reject defendant’s contention of improper bolstering
Crew III, Yesawich Jr., Peters and Carpinello, JJ., concur. Ordered that the judgment is affirmed.
Notes
It should be noted that defense сounsel did request the agency defense in regard to the count stemming from the alleged transaction dated December 28, 1992. County Court rejected the request to charge the jury with the agency defense. Defendant was nevertheless acquitted of that charge.