PEOPLE v. RICHARDS

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Steven R. RICHARDS, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., HAYES, WISNER, SCUDDER and BALIO, JJ. Bruce F. Freeman, Rochester, for Defendant-Appellant. Loretta S. Courtney, Rochester, for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him of criminal sale of a controlled substance in the second degree (Penal Law § 220.41[1] ) and other drug-related offenses.   Contrary to defendant's contention, the police did not interrogate defendant prior to advising him of his Miranda rights, which he waived.   We reject the contention of defendant that the police intentionally delayed his arraignment for the purpose of depriving him of his right to counsel.   The evidence before County Court does not establish that there was any “unnecessary delay” (CPL 140.20[1];  see, People v. Ortlieb, 84 N.Y.2d 989, 990, 622 N.Y.S.2d 501, 646 N.E.2d 803;  People v. Forbes, 264 A.D.2d 631, 696 N.Y.S.2d 10, lv. denied 94 N.Y.2d 903, 707 N.Y.S.2d 387, 728 N.E.2d 986).   Defendant also contends that the promises of leniency made by the police during the interrogation rendered his statement involuntary (see, CPL 60.45[2][b][i] ).   The statement of the police officer that he would inform the District Attorney of defendant's cooperation did not create a substantial risk that defendant might falsely incriminate himself (see, People v. Huntley, 259 A.D.2d 843, 845-846, 687 N.Y.S.2d 747, lv. denied 93 N.Y.2d 972, 695 N.Y.S.2d 58, 716 N.E.2d 1103;  see also, People v. Engert, 202 A.D.2d 1023, 1024, 609 N.Y.S.2d 979, lv. denied 83 N.Y.2d 910, 614 N.Y.S.2d 392, 637 N.E.2d 283).

 Defendant further contends that the court erred in admitting the testimony of the People's expert that the substance seized by the police was cocaine because the expert failed to testify concerning the accuracy of the tests she used in making that determination.   That contention is not preserved for our review (see, CPL 470.05[2];  People v. Fallen, 249 A.D.2d 771, 772, 672 N.Y.S.2d 157, lv. denied 92 N.Y.2d 879, 678 N.Y.S.2d 26, 700 N.E.2d 564;  People v. Spence, 182 A.D.2d 845, 583 N.Y.S.2d 18).   In any event, the court did not err in allowing her testimony because “ ‘[t]he failure to establish the accuracy of [a] standard does not render the evidence incompetent’ ” (People v. Vaughns, 272 A.D.2d 915, 708 N.Y.S.2d 534, quoting People v. Corchado, 166 A.D.2d 279, 560 N.Y.S.2d 462, lv. denied 78 N.Y.2d 954, 573 N.Y.S.2d 650, 578 N.E.2d 448).   The weight to be accorded the expert's opinion was for the jury to determine (see, People v. Vaughns, supra;  People v. Spence, supra).   Defendant's request for a missing witness charge, made after the close of proof, was untimely (see, People v. Santiago, 266 A.D.2d 846, 698 N.Y.S.2d 183, lv. denied 94 N.Y.2d 925, 708 N.Y.S.2d 364, 729 N.E.2d 1163;  see generally, People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583;  People v. Miller, 269 A.D.2d 746, 703 N.Y.S.2d 413).   In addition, the testimony of that witness would have been cumulative to the other evidence (see, People v. Gonzalez, supra, at 428, 509 N.Y.S.2d 796, 502 N.E.2d 583).

 Defendant also failed to preserve for our review his contention that the jury verdict rejecting the agency defense is not based on legally sufficient evidence (see, People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Nieves, 214 A.D.2d 590, 624 N.Y.S.2d 460, lv. denied 86 N.Y.2d 739, 631 N.Y.S.2d 619, 655 N.E.2d 716).   In any event, the evidence is legally sufficient to establish defendant's guilt and to disprove the agency defense (see, People v. Davis, 273 A.D.2d 104, 709 N.Y.S.2d 81;  People v. Page, 260 A.D.2d 153, 155, 688 N.Y.S.2d 133, lv. denied 93 N.Y.2d 928, 693 N.Y.S.2d 511, 715 N.E.2d 514;  People v. Nieves, supra;  People v. Thomas, 205 A.D.2d 838, 840, 613 N.Y.S.2d 442).   Defendant exhibited salesmanlike behavior by vouching for the quality of the drugs and by apologizing to the undercover officer when the officer received a lesser quantity than expected and offering to reduce the price for him the next time (see, People v. Roche, 45 N.Y.2d 78, 85, 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. Nieves, supra ).   Defendant admitted that he was familiar with the supplier of the drugs, having used him on many occasions in the past, and he referred to him as “my guy” (see, People v. Page, supra, at 155, 688 N.Y.S.2d 133).   In addition, the verdict is not against the weight of the evidence.   In rejecting the agency defense, the jury did not fail to give the evidence the weight it should be accorded (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Davis, supra;  People v. White, 272 A.D.2d 872, 708 N.Y.S.2d 215;  People v. Palumbo, 258 A.D.2d 963, 685 N.Y.S.2d 874, lv. denied 93 N.Y.2d 901, 689 N.Y.S.2d 713, 711 N.E.2d 989).   There is no merit to the contention that defendant was denied effective assistance of counsel (see generally, People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The sentence is neither unduly harsh nor severe.   We have considered the contentions raised in defendant's pro se supplemental brief and conclude that they are encompassed by the contentions raised in the main brief.

Judgment unanimously affirmed.

MEMORANDUM: