PEOPLE v. JACKSON (2004)

 Defendant appeals from a judgment convicting him following a jury trial of three counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1], [12] ), and one count each of criminal sale of a controlled substance in the second degree (§ 220.41[1] ) and criminal sale of a controlled substance in the third degree (§ 220.39[1] ).   Defendant contends that, in view of his agency defense, the verdict is against the weight of the evidence with respect to the counts involving the sale of cocaine.   We conclude that the jury did not fail to give the evidence the weight it should be accorded (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   With respect to the first transaction at issue, the People presented testimony establishing that defendant procured 0.224 ounces of cocaine for an undercover police officer and asked the officer for a piece of the cocaine as compensation.   The People also established that defendant told the officer that, “if [that transaction] went smoothly, further transactions would be possible in the future,” and he gave his telephone number to the officer in discussing the possibility of a future transaction involving an ounce of cocaine.   The People thereby established defendant's status beyond that of an agent with respect to the first transaction (see People v. Torrence, 305 A.D.2d 1042, 1043, 758 N.Y.S.2d 886, lv. denied 100 N.Y.2d 625, 767 N.Y.S.2d 408, 799 N.E.2d 631;  People v. Vaughns, 272 A.D.2d 915, 708 N.Y.S.2d 534, lv. denied 95 N.Y.2d 872, 715 N.Y.S.2d 227, 738 N.E.2d 375;  People v. Lucas, 162 A.D.2d 273, 556 N.Y.S.2d 629, lv. denied 76 N.Y.2d 860, 560 N.Y.S.2d 1000, 561 N.E.2d 900).   With respect to the second transaction at issue, the People presented testimony establishing that defendant procured 0.933 ounces of cocaine for the same undercover officer, that defendant retained for himself $200 of the $1,400 paid by the officer for the cocaine, and that defendant exhibited a familiarity with the terminology and practices of the illegal drug trade, thereby establishing defendant's status beyond that of an agent with respect to the second transaction (see People v. Tillman, 289 A.D.2d 1006, 1006-1007, 737 N.Y.S.2d 179, lv. denied 97 N.Y.2d 734, 740 N.Y.S.2d 707, 767 N.E.2d 164;  People v. Burden, 288 A.D.2d 821, 732 N.Y.S.2d 758, lv. denied 97 N.Y.2d 751, 742 N.Y.S.2d 611, 769 N.E.2d 357).

 We reject defendant's contention that the loss of certain trial exhibits precludes adequate appellate review where, as here, the information in the missing exhibits can be gleaned from the record and there is no dispute with respect to the accuracy of that information (see People v. Yavru-Sakuk, 98 N.Y.2d 56, 59-60, 745 N.Y.S.2d 787, 772 N.E.2d 1145;  People v. Skinner, 298 A.D.2d 625, 626, 747 N.Y.S.2d 857).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: