PEOPLE v. McVEY (2001)

Appeal by the defendant from a judgment of the County Court, Nassau County (LaPera, J.), rendered July 13, 2000, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that he was denied the effective assistance of counsel because his counsel failed to request that the court charge the jury on the agency defense.   However, contrary to the defendant's contention, no reasonable view of the evidence would support a conclusion that the defendant agreed to participate in this crime only because he wished to serve as an agent for the undercover police officer (see, People v. Ortiz, 76 N.Y.2d 446, 560 N.Y.S.2d 186, 560 N.E.2d 162;  People v. Argibay, 45 N.Y.2d 45, 407 N.Y.S.2d 664, 379 N.E.2d 191, cert. denied sub nom. Hahn-DiGuiseppe v. New York, 439 U.S. 930, 99 S.Ct. 317, 58 L.Ed.2d 323;  People v. Roche, 45 N.Y.2d 78, 407 N.Y.S.2d 682, 379 N.E.2d 208, cert. denied 439 U.S. 958, 99 S.Ct. 359, 58 L.Ed.2d 350;  People v. Herring, 83 N.Y.2d 780, 610 N.Y.S.2d 949, 632 N.E.2d 1272;  People v. Atkinson, 249 A.D.2d 317, 670 N.Y.S.2d 354;  People v. Williams, 175 A.D.2d 273, 572 N.Y.S.2d 726;  cf., People v. Greene, 173 A.D.2d 638, 569 N.Y.S.2d 985).

At the Sandoval hearing (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413), the defense counsel expressed concern that if the defendant asserted an agency defense, the People would seek to question the defendant about the underlying facts of a prior conviction of criminal sale of a controlled substance in the fourth degree as evidence of intent to sell drugs.   Faced with the possibility that the defendant's prior drug-related conviction would negate an agency defense (see, People v. Alvino, 71 N.Y.2d 233, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Chisholm, 282 A.D.2d 470, 726 N.Y.S.2d 39;  People v. Portalatin, 126 A.D.2d 577, 510 N.Y.S.2d 696;  People v. Monahan, 114 A.D.2d 380, 493 N.Y.S.2d 898), and the overwhelming evidence against the defendant, including a videotape of the transaction, it was reasonable for the defense counsel to choose not to pursue an agency defense.   The defense counsel chose, instead, to challenge the People's direct proof of intent, which was a legitimate trial strategy (see, People v. Scott, 283 A.D.2d 525, 727 N.Y.S.2d 442, lv. denied 96 N.Y.2d 907, 730 N.Y.S.2d 805, 756 N.E.2d 93;  People v. Baston, 181 A.D.2d 786, 581 N.Y.S.2d 826;  People v. Serrano, 163 A.D.2d 66, 557 N.Y.S.2d 330, supra;  People v. Santos, 160 A.D.2d 648, 559 N.Y.S.2d 265).   Ineffective assistance of counsel may not be premised upon unsuccessful trial strategy by the defense counsel (see, People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Under the circumstances of this case, we find that the defense counsel provided meaningful representation.