Storelli v. StorelliStorelli v. Storelli
Contrary to defendant‘s further contention, the court‘s charge on the agency defense does not require reversal. Upon our review of that charge “as a whole against the background of the evidence produced at the trial” (People v Andujas, 79 NY2d 113, 118 [1992]; see People v Waldriff, 46 AD3d 1448, 1448 [2007], lv denied 9 NY3d 1040 [2008]), we conclude that “[t]he charge properly conveyed the agency defense to the jury” (People v Schiano, 198 AD2d 820, 820 [1993], lv denied 82 NY2d 930 [1994]).
Defendant contends that the evidence is not legally sufficient to support the conviction because the People failed to disprove his agency defense beyond a reasonable doubt. That contention is not preserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]) and, in any event, it lacks merit. “The determination . . . whether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the jury to resolve on the circumstances of the particular case” (People v Lam Lek Chong, 45 NY2d 64, 74 [1978], cert denied 439 US 935 [1978]; see People v Brown, 50 AD3d 1596, 1597 [2008]). The evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is ” ‘legally sufficient . . . to establish that defendant was the seller of a controlled substance and not an agent of the buyer’ ” (People v Poole, 79 AD3d 1685, 1686 [2010], lv denied 16 NY3d 862 [2011]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). “It cannot be said that, in rejecting the agency defense, the jury failed to give the evidence the weight it should be accorded” (People v Watkins, 284 AD2d 905, 906 [2001], lv denied 96 NY2d 943 [2001]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith, Fahey, Carni and Martoche, JJ.
We agree with respondent that he was denied his right to counsel at the hearing before the Support Magistrate to determine whether he was in willful violation of the support order. “Although a party may proceed pro se, [a] court‘s decision to permit a party who is entitled to counsel to proceed pro se must be supported by a showing on the record of a knowing, voluntary and intelligent waiver of the [right to counsel] . . . In order for the court to ensure that the waiver of the right to counsel is valid, the court must conduct a searching inquiry of [the] party . . . [, and] there must be a showing that the party was aware of the dangers and disadvantages of proceeding without counsel” (Matter of Commissioner of Genesee County Dept. of Social Servs. v Jones, 87 AD3d 1275, 1275-1276 [2011] [internal quotation marks omitted]). The record establishes that respondent advised the Support Magistrate that he had spoken to a person at the Public Defender‘s Office and expected an attorney to be at the hearing. The Support Magistrate reminded respondent that he stated at the initial appearance that he would be representing himself. When asked by the Support Magistrate whether he was prepared to go forward with the hearing, respondent replied “Well, I guess I am.” “Where, as here, the court fails to conduct a searching inquiry, reversal is required” (id. at 1276). We therefore reverse the order and remit the matter to Family Court for a new hearing. Present—Scudder, P.J., Smith, Fahey, Carni and Martoche, JJ.
SCUDDER, P.J., SMITH, FAHEY, CARNI AND MARTOCHE, JJ.