PEOPLE v. JONES

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

The PEOPLE of the State of New York, Respondent, v. John JONES, a/k/a Abdus-Samad Jalil, etc., Defendant-Appellant.

Decided: February 23, 1999

SULLIVAN, J.P., ELLERIN, WILLIAMS and WALLACH, JJ. Jessica Bier, for Respondent. Robert J. Carlucci, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered November 21, 1995, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 41/212 to 9 years, unanimously affirmed.

 Defendant's guilt of the crime charged was proven by legally sufficient evidence and the verdict was not against the weight of the evidence.   The evidence proved beyond a reasonable doubt that defendant was part of a “well choreographed, two person drug operation conducted by streetwise entrepreneurs” (People v. Baker, 176 A.D.2d 153, 154, 574 N.Y.S.2d 39, lv. denied 79 N.Y.2d 824, 580 N.Y.S.2d 204, 588 N.E.2d 102).  The court properly denied defendant's request for an agency charge, since no reasonable view of the evidence, which showed that defendant had no relationship with the purchaser but rather facilitated the actual drug transaction and invited future purchases, would support such a charge (see, People v. Herring, 83 N.Y.2d 780, 610 N.Y.S.2d 949, 632 N.E.2d 1272).

 Testimony that a crack pipe was recovered from the co-defendant was properly admitted to contradict defendant's position, presented to the jury during opening, that the co-defendant was the “real” drug seller, supported by defendant's argument that defendant's own possession of a crack pipe established that defendant was only a drug user.

 The court appropriately exercised its discretion in denying defendant's recusal application.   Information derived from the court's adjudicatory function was not a proper basis for recusal since the court was capable of distinguishing issues and making objective determinations based upon appropriate legal criteria (People v. Moreno, 70 N.Y.2d 403, 405-406, 521 N.Y.S.2d 663, 516 N.E.2d 200).

MEMORANDUM DECISION.