People v Robinson
Appellate Division, Third Department
December 11, 2014
2014 NY Slip Op 08672 [123 AD3d 1224]
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2015
Alexander W. Bloomstein, Hillsdale, for appellant.
Paul Czajka, District Attorney (James A. Carlucci of counsel), for respondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of Columbia County (Nichols, J.), rendered April 20, 2011, convicting defendant following a nonjury trial of the crime of criminal sale of a controlled substance in the third degree (two counts), (2) from a judgment of said court, rendered September 4, 2012, which resentenced defendant following said conviction, and (3) by permission, from an order of said court, entered April 23, 2013, which denied defendant‘s motion pursuant to
Defendant was indicted and charged with two counts of criminal sale of a controlled substance in the third degree. The charges stemmed from defendant‘s sale of crack cocaine to an undercover Columbia County sheriff‘s deputy in April 2009 and May 2009. Following a nonjury trial, at which defendant testified in support of his agency defense, defendant was convicted as charged and was sentenced, as a second violent felony offender, to an aggregate prison term of 16 years followed by three years of postrelease supervision. When the Court of Appeals reversed the conviction that formed the basis for defendant‘s predicate felony (People v Robinson, 17 NY3d 868 [2011]), defendant moved to be resentenced pursuant to
We affirm. To the extent that defendant contends that the underlying conviction is not supported by legally sufficient evidence, we note that defendant‘s generalized motion to dismiss at the close of the People‘s case was insufficient to preserve his present claim, i.e., that the People failed to disprove his agency defense beyond a reasonable doubt (see People v Greenfield, 112 AD3d 1226, 1226 [2013], lv denied 23 NY3d 1037 [2014]; People v Simmons, 103 AD3d 1027, 1029 [2013], lv denied 21 NY3d 1009 [2013]). Additionally, defendant, who testified upon his own behalf, failed to renew this motion at the close of all proof; accordingly, defendant‘s challenge to the legal sufficiency of the evidence is not preserved for our review (see People v Fisher, 89 AD3d 1135, 1136 [2011], lv denied 18 NY3d 883 [2012]; People v Race, 78 AD3d 1217, 1219 [2010], lv denied 16 NY3d 835 [2011]). “That said, our weight of the evidence [analysis] necessarily involves an evaluation of whether all elements of the charged crime[s] were proven beyond a reasonable doubt at trial” (People v Menegan, 107 AD3d 1166, 1169 [2013] [internal quotation marks and citations omitted]; see People v Ramirez, 118 AD3d 1108, 1110 [2014]).
Insofar as is relevant here, “[a] person is guilty of criminal sale of a controlled substance in the third degree when he [or she] knowingly and unlawfully sells . . . a narcotic drug” (
Here, the undercover deputy testified that she was introduced to defendant by a confidential informant; defendant provided the deputy with his phone number and told her to call him Z. Thereafter, on April 21, 2009 and May 21, 2009, the deputy contacted defendant at the number previously provided, told him that she needed a specific dollar amount of drugs and met with defendant at the agreed-upon locations, at which time defendant provided her with a substance that subsequently tested positive for cocaine. According to the deputy, at no time did defendant indicate either that he would need to procure the drugs from someone else or that he was doing so merely as a favor to her. Although defendant admitted that he sold drugs to the deputy on the days in question, he contended that he obtained the drugs from other people and
Although the deputy and defendant provided conflicting accounts of the subject transactions, this presented a credibility issue for County Court to resolve (see People v Kramer, 118 AD3d at 1042). Accordingly, while a different result would not have been unreasonable, viewing the evidence in a neutral light and deferring to County Court‘s credibility determinations, we do not find defendant‘s conviction to be against the weight of the evidence (see People v Johnson, 91 AD3d at 1117). Defendant‘s related challenge in this regard—namely, that the People failed to establish that the substance he sold was in fact cocaine—is unpreserved for our review (see id. at 1115) and, in any event, is lacking in merit.
Defendant‘s remaining arguments are equally unavailing. With respect to County Court‘s suppression rulings, we do not find the subject photo array to be unduly suggestive (see People v Pendelton, 90 AD3d 1234, 1236-1237 [2011], lv denied 18 NY3d 996 [2012]; People v Deshields, 24 AD3d 1112, 1112-1113 [2005], lv denied 6 NY3d 811 [2006]), nor are we persuaded that the identification procedures employed therein violated due process. In any event, identification ultimately was not an issue, as defendant readily admitted his participation in the subject transactions. Similarly, with regard to County Court‘s Sandoval ruling, we are satisfied that the prior conviction “reflected defendant‘s willingness to place his interests above those of society” and that County Court, in turn, properly balanced the probative value of the conviction against its prejudicial effect (People v Alnutt, 101 AD3d 1461, 1464 [2012], lv denied 21 NY3d 941 [2013], cert denied 571 US 1169, 134 S Ct 1035 [2014]).2 To the extent that defendant challenges County Court‘s sua sponte questioning of certain witnesses, we note that defendant failed to lodge any objection in this regard and, therefore, this issue is unpreserved for our review (cf. People v Robinson, 121 AD3d 1179, 1180 [2014]). In any event, County Court clearly “is permitted to raise matters on its own initiative in order to elicit significant facts, clarify or enlighten an issue or to facilitate the orderly and expeditious progress of the trial” (People v Lupo, 92 AD3d 1136, 1138 [2012] [internal quotation marks and citation omitted]).
We also find no merit to defendant‘s claim that he was denied the effective assistance of
As for defendant‘s various sentencing challenges, we reject defendant‘s assertion that the sentence imposed was harsh and excessive. Further, we find no merit to defendant‘s claim that County Court erred in resentencing him without first obtaining an updated presentence report and/or in denying his subsequent motion to be resentenced upon this ground. Initially, defendant raised no objection in this regard at the time of his resentencing in September 2012 and, to that extent, cannot now be heard to complain. In any event, and more specifically with regard to the denial of defendant‘s subsequent motion, “[w]hether to obtain an updated presentence report is a matter resting within the discretion of the sentencing court” (People v Williams, 114 AD3d 993, 994 [2014], lv denied 23 NY3d 969 [2014] [internal quotation marks and citations omitted]). Here, defendant had been continuously incarcerated since the imposition of the original sentence, defendant was afforded an opportunity to address the court at resentencing and County Court, having presided over defendant‘s trial, was well aware of the issues underlying the resentencing and defendant‘s intervening history. Under these circumstances, we discern no abuse of County Court‘s discretion in resentencing defendant without first obtaining an updated presentence report (see id. at 994; People v Lakatosz, 89 AD3d 1329, 1330 [2011], lv denied 18 NY3d 925 [2012]) or in denying his subsequent motion with respect thereto. Defendant‘s remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.
McCarthy, J.P., Lynch, Devine and Clark, JJ., concur. Ordered that the judgments and order are affirmed.