PEOPLE v. CASTILLO (2007)

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered June 8, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

The verdict rejecting defendant's agency defense was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   The evidence established that defendant approached the undercover purchaser, with whom he had no prior relationship, communicated separately with the seller, vouched for the drugs and stayed with the purchaser while the seller went to get the drugs.   Thus, defendant's actions were consistent with that of a steerer (see People v. Herring, 83 N.Y.2d 780, 783, 610 N.Y.S.2d 949, 632 N.E.2d 1272 [1994] ).   There was no evidence suggesting that defendant was doing a “favor” for the purchaser (see People v. Lam Lek Chong, 45 N.Y.2d 64, 74-75, 407 N.Y.S.2d 674, 379 N.E.2d 200 [1978], cert. denied 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331 [1978] ), or “of any conversation between defendant and the undercover purchaser as to why the latter needed or wanted to be represented by an ‘agent’ instead of simply buying his own drugs” (People v. Vaughan, 300 A.D.2d 104, 750 N.Y.S.2d 846 [2002], lv. denied 99 N.Y.2d 633, 760 N.Y.S.2d 115, 790 N.E.2d 289 [2003] ).

The court's Sandoval ruling properly balanced the probative value against the prejudicial effect of certain of defendant's prior drug convictions, and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002];  People v. Walker, 83 N.Y.2d 455, 458-459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994];  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216 [1983] ).

Defendant's arguments for a reduced penalty under the Drug Law Reform Act (L. 2004, ch. 738) are without merit (People v. Utsey, 7 N.Y.3d 398, 822 N.Y.S.2d 475, 855 N.E.2d 791 [2006] ).