THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MALIK A. MOSBY, Appellant.
Supreme Court, Appellate Division, Third Department, New York
November 18, 2010
78 A.D.3d 1371 | 911 N.Y.S.2d 493
Defendant was charged by indictment with selling cocaine, fentanyl and/or oxycodone to police officers working in an undercover capacity on two separate occasions in August 2005. Following a jury trial, he was found guilty of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts) and later sentenced, as a second felony offender, to an aggregate prison term of 10 years, plus three-year periods of postrelease supervision on each conviction as they relate to each drug transaction.
In a prior opinion, this Court determined that the matter should be remitted to County Court to determine whether the prosecution failed to disclose certain Rosario material at trial, and, if so, whether a reasonable possibility existed that, had the jury heard this evidence or any part of it, it would have arrived at a different verdict (People v Mosby, 69 AD3d 1045 [2009]). Upon remittal and after a hearing, County Court determined that the material should have been disclosed but, even if it had been heard by the jury, it would not have resulted in a different verdict. We agree and affirm the judgment of conviction, as well as both orders denying defendant‘s
While the prosecution provided defendant with tape recordings and other materials generated by the drug sales charged in the indictment, it originally failed to disclose the existence of a tape recording of a conversation between defendant and an undercover police officer that took place prior to the transactions in question. This conversation set the stage for the undercover police officer‘s subsequent dealings with defendant, and the tape recording of it should have been disclosed to defendant prior to trial (see
Next, we reject defendant‘s arguments that he was denied the effective assistance of counsel due to counsel‘s failure to request an agency charge with respect to counts three and four of the indictment and an expanded agency charge with respect to counts seven and eight of the indictment. To establish such a claim, “defendant must demonstrate that his attorney failed to provide meaningful representation” (People v Caban, 5 NY3d 143, 152 [2005]). While it is not necessary in making such a claim that defendant establishes that he was prejudiced by counsel‘s failures, such a showing is undoubtedly significant; however, “[o]ur focus is on the fairness of the proceedings as a whole” (People v Stultz, 2 NY3d 277, 284 [2004]; see People v Caban, 5 NY3d at 155-156; People v Baldi, 54 NY2d 137, 146-147 [1981]). Moreover, a defendant must “demonstrate the absence of strategic or other legitimate explanations for counsel‘s allegedly deficient conduct,” and counsel will not be found to have been ineffective simply as a result of a failure “to make a motion or argument that has little or no chance of success” (People v Caban, 5 NY3d at 152 [internal quotation marks and citations omitted]).
Defendant‘s claim of ineffective assistance is based in part on his contention that counsel did not do all that he should have in pursuing an agency defense at trial. A defendant cannot be convicted of the illegal sale of narcotics if, at the time of the transaction, it is established that he is acting “solely as the agent of the buyer” (People v Lam Lek Chong, 45 NY2d 64, 73 [1978], cert denied 439 US 935 [1978]; accord People v Andujas, 79 NY2d 113, 117 [1992]). Moreover, a more expansive explanation regarding the agency defense should be given if, at the time of the sale, defendant has acted “both as a buyer in his [or her] own right and as agent to buy for another” (People v Andujas, 79 NY2d at 118). Here, defendant‘s counsel did not request an expanded agency charge, but did request, as previously noted, the standard agency charge with respect to all but two counts of the indictment. Moreover, credible evidence was presented at trial that defendant initiated one of the sales and expected to receive a benefit—beyond an incidental benefit of drugs for himself—as a result of the other. In addition, no evidence was presented that defendant was acting as the undercover officer‘s agent when he purchased the drugs or that he had obtained them prior to selling them to the undercover officer for his own personal consumption. Under the circumstances, we cannot say that counsel did not have a reasonable basis for not requesting that County Court give the jury a more expansive explanation of the agency defense in its charge (see People v Brimberry, 237 AD2d 229 [1997]; People v Job, 217 AD2d 497, 498 [1995], affd 87 NY2d 956 [1996]; see also People v Lam Lek Chong, 45 NY2d at 75; People v Sheppard, 273 AD2d 498, 499 [2000], lv denied 95 NY2d 908 [2000]).
We also reject defendant‘s argument that counsel failed to effectively represent him when he did not obtain a copy of the original search warrant. Defendant argues that information in
Finally, defendant argues that counsel provided ineffective representation because he failed to recognize that defendant‘s out-of-state convictions did not constitute felonies in New York and that, as a result, he should not have been sentenced as a second felony offender. For sentencing purposes, “a prior out-of-[s]tate conviction is a predicate felony conviction in New York when the foreign conviction carries with it a sentence of imprisonment in excess of one year” and such a sentence is authorized for the same offense in New York (People v Gonzalez, 61 NY2d 586, 589 [1984]; see
Defendant‘s status as a second felony offender is predicated on his 1999 forgery conviction in Virginia.1 The Virginia statute criminalizes the forgery of any writing to the prejudice of another, or knowingly uttering a forged writing or knowingly attempting to employ a forged writing as true (see
Therefore, it is necessary to consider the content of the accusatory instrument submitted in connection with defendant‘s 1999 Virginia conviction to determine if it constitutes a prior felony for sentencing purposes in New York (see
Defendant‘s arguments, made in connection with his
Defendant‘s remaining contentions regarding ineffective assistance of counsel and his argument, made on his
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment and orders are affirmed.