PEOPLE v. WALKER (2005)

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered June 16, 2003, convicting defendant, after a jury trial, of criminal possession 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 was based on legally sufficient evidence and was not against the weight of the evidence.   Defendant's challenges to the sufficiency and weight of the evidence are based on an agency theory that he did not raise at trial (see People v. Wright, 288 A.D.2d 28, 732 N.Y.S.2d 225 [2001], lv. denied 97 N.Y.2d 735, 740 N.Y.S.2d 708, 767 N.E.2d 165 [2002] ).   Furthermore, defendant's theory rests on assumptions about the jury's thought processes in reaching a mixed verdict (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ).   In any event, we find that defendant's agency theory is not supported by any evidence, including his own testimony (see People v. Starling, 85 N.Y.2d 509, 515-516, 626 N.Y.S.2d 729, 650 N.E.2d 387 [1995] ).

The record establishes that defendant received effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

 Defendant's sentence, which was the statutory minimum, did not constitute unconstitutional cruel and unusual punishment, particularly in light of defendant's extensive criminal record (see People v. Thompson, 83 N.Y.2d 477, 480, 611 N.Y.S.2d 470, 633 N.E.2d 1074 [1994];  People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338 [1975], cert. denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 [1975] ).   We perceive no basis for reducing the defendant's conviction to a lesser offense.