PEOPLE v. JONES (2008)

Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the seventh degree (§ 220.03).   Defendant failed to preserve for our review his contention in his main brief and pro se supplemental brief that County Court erred in refusing to provide the jury with written instructions on the agency defense upon its request, in violation of CPL 310.30 (see CPL 470.05[2];  see also People v. Howard, 267 A.D.2d 1006, 700 N.Y.S.2d 899, lv. denied 95 N.Y.2d 835, 713 N.Y.S.2d 142, 735 N.E.2d 422, cert. denied 532 U.S. 999, 121 S.Ct. 1664, 149 L.Ed.2d 645).   In any event, that contention is without merit.  “ ‘The court has discretion to respond as it deems proper to an inquiry by a deliberating jury ․, provided that the supplemental instruction is a meaningful response to the jury's inquiry’ ” (People v. Smith, 21 A.D.3d 1277, 1277-1278, 801 N.Y.S.2d 663, lv. denied 7 N.Y.3d 763, 819 N.Y.S.2d 889, 853 N.E.2d 260;  see generally CPL 310.30).   Here, although the court refused to provide a written copy of the agency defense to the jury, its offer to read the defense to the jury as many times as the jury deemed necessary constituted “a meaningful response to the jury's request for information” (People v. Bryant, 13 A.D.3d 1170, 1171, 787 N.Y.S.2d 540, lv. denied 4 N.Y.3d 884, 798 N.Y.S.2d 729, 831 N.E.2d 974).

Defendant further contends in his main brief that the verdict with respect to the count of criminal sale of a controlled substance is against the weight of the evidence.   We reject that contention (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “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 A.D.2d 905, 906, 726 N.Y.S.2d 513, lv. denied 96 N.Y.2d 943, 733 N.Y.S.2d 383, 759 N.E.2d 382).   The sentence is not unduly harsh or severe.

Contrary to the further contention of defendant in his pro se supplemental brief, the evidence is legally sufficient to support the conviction of criminal sale of a controlled substance (see People v. Brown, 50 A.D.3d 1596, 855 N.Y.S.2d 801;  People v. Carr, 254 A.D.2d 91, 679 N.Y.S.2d 108, lv. denied 93 N.Y.2d 967, 695 N.Y.S.2d 53, 716 N.E.2d 1098), and thus defendant's challenge to the legal sufficiency of the evidence before the grand jury is not reviewable on appeal (see CPL 210.30[6];  People v. Jamison, 45 A.D.3d 1438, 1440, 845 N.Y.S.2d 662, lv. denied 10 N.Y.3d 766, 854 N.Y.S.2d 328, 883 N.E.2d 1263).   We have reviewed the remaining contention of defendant in his pro se supplemental brief and conclude that it is without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: