PEOPLE v. (Appeal No. 1.) (2020)

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting him after a bench trial of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]), criminal sale of a controlled substance in the third degree (§ 220.39 [1] ), tampering with physical evidence (§ 215.40 [2] ), and endangering the welfare of a child (§ 260.10 [1] ), defendant contends that the evidence with respect to the first two crimes is legally insufficient because the People failed to disprove his agency defense beyond a reasonable doubt. Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), we reject that contention. The evidence submitted by the People established, inter alia, that defendant purchased two bags of heroin, ingested three-quarters of the drugs, and gave the remaining one-quarter to his girlfriend, who died after ingesting it. Contrary to defendant's contention, the evidence is legally sufficient “to establish that [he] was the seller of a controlled substance and [was] not” merely delivering heroin to his girlfriend as her agent (People v. Burden, 288 A.D.2d 821, 821, 732 N.Y.S.2d 758 [4th Dept. 2001], lv denied 97 N.Y.2d 751, 742 N.Y.S.2d 611, 769 N.E.2d 357 [2002]; see § 220.00 [1]; see generally 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]).

Contrary to defendant's further contention, viewing the evidence in the light most favorable to the People (see Contes, 60 N.Y.2d at 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the evidence is legally sufficient to support the conviction with respect to the crimes of tampering with physical evidence and endangering the welfare of a child (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). In addition, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that County Court, in rejecting the agency defense with respect to the first two crimes, did not fail to give the evidence the weight it should be accorded (see People v. Walker, 117 A.D.3d 1441, 1442, 986 N.Y.S.2d 284 [4th Dept. 2014], lv denied 23 N.Y.3d 1044, 993 N.Y.S.2d 258, 17 N.E.3d 513 [2014]; People v. Watkins, 284 A.D.2d 905, 906, 726 N.Y.S.2d 513 [4th Dept. 2001], lv denied 96 N.Y.2d 943, 733 N.Y.S.2d 383, 759 N.E.2d 382 [2001]), and that the verdict with respect to all of the crimes is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant further contends that the court erred in refusing to suppress his initial statements to the police. We reject that contention. We conclude that defendant was not in police custody at the time he made those statements, and thus Miranda warnings were not required (see People v. Towsley, 53 A.D.3d 1083, 1084, 862 N.Y.S.2d 236 [4th Dept. 2008], lv denied 11 N.Y.3d 795, 866 N.Y.S.2d 621, 896 N.E.2d 107 [2008]; see also People v. Brown, 111 A.D.3d 1385, 1385-1386, 975 N.Y.S.2d 293 [4th Dept. 2013], lv denied 22 N.Y.3d 1155, 984 N.Y.S.2d 638, 7 N.E.3d 1126 [2014]; see generally People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970]). In addition, we reject defendant's claim that his statements were involuntarily made due to his alleged intoxication inasmuch as the evidence presented at the suppression hearing establishes that he was not “intoxicated to a degree of mania or of being unable to understand the meaning of his statements” (People v. Benjamin, 17 A.D.3d 688, 689, 793 N.Y.S.2d 547 [2d Dept. 2005], lv denied 5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155 [2005]; see People v. Iddings, 23 A.D.3d 1132, 1133, 805 N.Y.S.2d 210 [4th Dept. 2005], lv denied 6 N.Y.3d 776, 811 N.Y.S.2d 343, 844 N.E.2d 798 [2006]).

Finally, defendant's contentions concerning the sentence are rendered academic by our determination in defendant's appeal from the denial of his CPL article 440 motion (see People v. Mineccia [Appeal No. 2], ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2020 WL 4034397 [July 17, 2020] [4th Dept. 2020] [decided herewith] ).