People v. Peterkin , 23 N.Y.S.3d 719 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 21, 2016 107024
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
ANTHONY J. PETERKIN SR.,
Appellant.
________________________________
Calendar Date: November 19, 2015
Before: Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.
__________
Susan Patnode, Rural Law Center of New York, Albany
(Cynthia Feathers of counsel), for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of
counsel), for respondent.
__________
Peters, P.J.
Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered August 28, 2014, upon a verdict
convicting defendant of the crimes of criminal sale of a
controlled substance in the third degree and criminal possession
of a controlled substance in the third degree.
Defendant was indicted for criminal sale of a controlled
substance in the third degree and criminal possession of a
controlled substance in the third degree stemming from his sale
of crack cocaine to a confidential informant (hereinafter CI)
during a controlled buy. Following a jury trial, at which
defendant testified in support of his agency defense, defendant
was convicted as charged and sentenced as a second felony
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offender to concurrent 10-year prison terms. He appeals.
Defendant contends that the verdict is not supported by
legally sufficient evidence and is against the weight of the
evidence, specifically claiming that the People failed to
disprove his agency defense beyond a reasonable doubt. His
challenge to the legal sufficiency of the evidence is unpreserved
for our review inasmuch as he presented evidence after his
unsuccessful motion to dismiss and failed to renew that motion at
the close of all proof (see People v Lane, 7 NY3d 888, 889
[2006]; People v Robinson, 123 AD3d 1224, 1225 [2014], lvs denied
25 NY3d 992, 993 [2015]). Nevertheless, we necessarily determine
whether the agency defense was disproven in the context of our
weight of the evidence review (see People v Danielson, 9 NY3d
342, 348 [2007]; People v Robinson, 123 AD3d at 1225; People v
Vanderhorst, 117 AD3d 1197, 1198 [2014], lv denied 24 NY3d 1089
[2014]).
"Under the agency doctrine, 'a person who acts solely as
the agent of a buyer in procuring drugs for the buyer is not
guilty of selling the drug to the buyer, or of possessing it with
intent to sell it to the buyer'" (People v Kramer, 118 AD3d 1040,
1041 [2014], quoting People v Watson, 20 NY3d 182, 185 [2012]
[internal quotation marks and citation omitted]; see People v
Echevarria, 21 NY3d 1, 20 [2013]). "[W]hether 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 Chong, 45 NY2d
64, 74 [1978], cert denied 439 US 935 [1978]; see People v
Vanguilder, 130 AD3d 1247, 1248-1249 [2015]; People v Nowlan, 130
AD3d 1146, 1147 [2015]). The jury may consider a number of
factors in assessing whether the defendant acted solely to
accommodate the buyer, including "the nature and extent of the
relationship between the defendant and the buyer, whether it was
the buyer or the defendant who suggested the purchase, whether
the defendant has had other drug dealings with this or other
buyers or sellers and, of course, whether the defendant profited,
or stood to profit, from the transaction" (People v Watson, 20
NY3d at 186 [internal quotation marks and citation omitted];
accord People v Robinson, 123 AD3d at 1226; see People v Kramer,
118 AD3d at 1041-1042).
-3- 107024
The trial evidence established that the police arranged for
a controlled buy at a home in the City of Ogdensburg, St.
Lawrence County that had previously been identified by the CI as
a location where drugs were being sold. Once there, the CI
encountered one of the owners of the home and asked him "if
there's anything going on," which she intended as a drug
reference. This individual responded affirmatively and pointed
to defendant, whom the CI recognized from previous visits to the
subject home during which the two smoked crack together. The CI
then handed defendant the buy money, and defendant proceeded up a
set of stairs to an upper story of the home. When he returned,
defendant handed the CI a bag containing a white substance that
later tested positive for cocaine. Defendant admitted that he
procured the crack cocaine for the CI on the day in question, but
claimed that he did so as a favor to the CI and that he neither
controlled the drugs nor profited from the transaction.
Defendant explained that after the CI asked him, directly, to get
her "some stuff," he went to the upstairs portion of the home
where he surrendered the money to a "guy" in exchange for the
crack cocaine that he then delivered to the CI. Defendant's
account of the subject transaction presented a credibility issue
for the jury to resolve (see People v Robinson, 123 AD3d at 1226-
1227). While a different result would not have been
unreasonable, upon evaluating the evidence in a neutral light and
deferring to the jury's credibility assessments, we do not find
the verdict to be contrary to the weight of the evidence (see id.
at 1227; People v Johnson, 91 AD3d 1115, 1116-1117 [2012], lv
denied 18 NY3d 959 [2012]; People v Guthrie, 57 AD3d 1168, 1170
[2008], lv denied 12 NY3d 816 [2009]; People v Delaney, 42 AD3d
820, 821 [2007], lv denied 9 NY3d 922 [2007]; People v Sheppard,
273 AD2d 498, 499 [2000], lv denied 95 NY2d 908 [2000]).
Lahtinen, Garry, Rose and Clark, JJ., concur.
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ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court