PEOPLE v. MASSEY (2008)

Judgment, Supreme Court, New York County (Carol Berkman, J. at hearing;  Edward J. McLaughlin, J. at jury trial and sentence), convicting defendant of criminal sale of a controlled substance in the third degree and resisting arrest, and sentencing him, as a second felony drug offender, to an aggregate term of 4 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility.   The account of the transaction given by the prosecution witnesses was at odds with defendant's agency defense (see e.g. 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] ), and defendant's present argument rests on his own testimony, which the jury was entitled to reject.   Defendant's arguments concerning the resisting arrest conviction are without merit.

 As defendant concedes, the fact that he interposed an agency defense permitted the People to introduce evidence of prior drug sales.   We reject defendant's argument that the court permitted elicitation of excessive and prejudicial details about his prior drug sale conviction.   The challenged evidence was highly probative to refute his agency defense, and that probative value outweighed the potential for undue prejudice (see People v. Castaneda, 173 A.D.2d 349, 350, 569 N.Y.S.2d 719 [1991], lv. denied 78 N.Y.2d 963, 574 N.Y.S.2d 943, 580 N.E.2d 415 [1991] ), which the court minimized by means of a limiting instruction.   Moreover, defendant specifically opened the door to inquiry into the facts of his prior case when, on cross-examination, he testified that he was innocent of the prior crime notwithstanding his guilty plea in that case.

 The court properly denied defendant's suppression motion.   Defendant's generalized argument that the police lacked probable cause for his arrest failed to preserve his present contentions (see People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920 [1976] ), and we decline to review them in the interest of justice.   As an alternative holding, we also reject them on the merits.   The hearing evidence warranted the conclusion that the arresting officer acted lawfully, pursuant to the fellow officer rule (see People v. Ketcham, 93 N.Y.2d 416, 690 N.Y.S.2d 874, 712 N.E.2d 1238 [1999];  People v. Green, 2 A.D.3d 279, 769 N.Y.S.2d 532 [2003], lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919 [2004] ).