PEOPLE v. WILLIAMS

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

The PEOPLE of the State of New York, Respondent, v. Timothy WILLIAMS, Defendant–Appellant.

Decided: October 06, 2011

TOM, J.P., SAXE, DeGRASSE, FREEDMAN, ROMÁN, JJ. Steven Banks, The Legal Aid Society, New York (Adrienne Hale of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered October 29, 2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender whose prior conviction was a violent felony, to concurrent terms of 7 1/212 years, unanimously affirmed.

 The court properly denied defendant's request for an agency charge.   No reasonable view of the evidence, viewed most favorably to defendant, suggests that he participated in the drug sale, but nevertheless did so only because he wished to do a favor for the undercover buyer, who was a stranger.   On the contrary, defendant's behavior toward the undercover buyer and other prospective drug purchasers was clearly that of a steerer (see e.g. People v. Smith, 52 A.D.3d 232, 859 N.Y.S.2d 75 [2008], lv. denied 11 N.Y.3d 741, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008] ).   The court's charge on accessorial liability (see Penal Law § 20.00) provided sufficient guidance to the jury regarding the issue of whether defendant was intentionally aiding the person who actually sold the drugs (see People v. Herring, 83 N.Y.2d 780, 783, 610 N.Y.S.2d 949, 632 N.E.2d 1272 [1994] ), and there was no need for an additional instruction on the agency defense.

 Defendant did not provide a record sufficient to permit review of his claim that the court failed to disclose the contents of a jury note to defense counsel.   The record, including the recorded colloquy on a similar note received a short time later, warrants an inference that in an unrecorded conversation, defense counsel was apprised of the contents of the note in question (see e.g. People v. Fishon, 47 A.D.3d 591, 851 N.Y.S.2d 139 [2008], lv. denied 10 N.Y.3d 958, 863 N.Y.S.2d 142, 893 N.E.2d 448 [2008];  compare People v. Tabb, 13 N.Y.3d 852, 891 N.Y.S.2d 686, 920 N.E.2d 90 [2009] ).   Accordingly, the court fulfilled its core responsibilities under People v. O'Rama, 78 N.Y.2d 270, 277, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991], and there was no mode of proceedings error.

The court lawfully directed a court officer to perform the ministerial act of informing the jury that the court would not provide written instructions (see People v. Jonson, 27 A.D.3d 289, 811 N.Y.S.2d 366 [2006], lv. denied 6 N.Y.3d 895, 817 N.Y.S.2d 630, 850 N.E.2d 677 [2006] ).