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People v. Valentin

New York Court of Appeals

May 2, 2017

The People & c., Respondent,
v.
Jose Valentin, Appellant.

          Kate Mollison, for appellant.

          Brian R. Pouliot, for respondent.

          OPINION

          DiFIORE, Chief Judge.

         We are asked to determine whether the People are permitted to introduce evidence of a defendant's prior drug sale conviction on their direct case when a defendant asserts an agency defense supported solely by portions of the People's case-in-chief. We hold that, under these circumstances, the trial court may, in its discretion, entertain a People's application pursuant to People v Molineux (168 NY 264 [1901]) and allow into evidence a defendant's previous drug sale conviction on the issue of the intent to sell the drugs.

         On the afternoon of May 21, 2010, several undercover officers were conducting a "buy-and-bust" operation near 110th Street and First Avenue in Manhattan. After watching defendant and another individual, Jose Barrios, walking together for approximately 40 minutes, one of the officers observed Barrios hand defendant money. Defendant then crossed the street and entered a 20-story residential building. After a few minutes, defendant exited the building and walked directly over to Barrios, who had since moved to another corner. The officer observed defendant hand what was later revealed to be glassine envelopes of heroin to Barrios, who then placed the glassine envelopes in his right front pants pocket. As the pair walked away together, they were stopped by police. The arresting officer recovered the two glassine envelopes of heroin from Barrios's right pants pocket and another officer searched defendant and recovered eight dollars.

         After completion of jury selection, defense counsel, who did not present any defense witnesses or call defendant to testify at trial, gave notice to the court and the People that there was "a possibility" that he would present an agency defense. Thereafter, defense counsel, in his opening statement, asked the jury to consider whether defendant engaged in "salesman-like[] conduct, " whether he had customers other than Barrios, and whether his behavior was typical of a seller or, rather, someone who was "walk[ing] with his buddy."

         During cross-examination of the police officers, defense counsel honed in on defendant's behavior and whether defendant was simply acting as a mere extension of the buyer. Specifically, on cross-examination of the officer who was acting as "ghost" [1] in the narcotics surveillance that day, defense counsel elicited that the officer observed defendant and Barrios standing together engaged in conversation, in support of his argument that the buyer was just a friend. Along the same lines of inquiry, defense counsel elicited from the officer that in the context of general narcotics operations, the officer sometimes knew "who the players are" but that defendant's name and picture had never come up in the officer's investigation of this drug-prone area. Finally, defense counsel, disputing the profit motive for the transfer of drugs, elicited that the going price of the two envelopes of heroin found on Barrios was usually about ten dollars per item. Only eight dollars was found on defendant.

         In cross-examining the arresting officer, defense counsel elicited that the police had observed defendant and Barrios walking together on the street for a period of approximately 40 minutes, in support of an argument that such behavior was consistent with a friendship and not a business relationship. Defense counsel also brought out that defendant was not found with any prerecorded money, typically used in undercover buys, and that the arresting officer did not take any steps to investigate any phone numbers in defendant's cell phone.

         Midtrial, the People inquired as to defendant's intention regarding the agency defense, indicating that they would not rest without the opportunity to present evidence of defendant's drug sale convictions. Defense counsel responded that he did not intend to call the buyer or defendant to the stand, explaining that his strategy was to "flush out" the testimony of the People's witnesses to support the defense.

         At the close of the People's case but before they rested, defense counsel again raised the agency defense but argued that the People should not be permitted to introduce any of defendant's prior sale convictions because the People's evidence - and not the evidence presented by defendant - provided the basis for the agency defense. The court, after a colloquy as to whether there was even a factual basis for the agency charge in the first instance, determined that it would grant defendant's request for an agency charge, but if the charge was to be given, the People would be permitted to introduce evidence of defendant's prior drug sale conviction.

         After consulting with defendant, defense counsel requested that the court give the agency charge to the jury. The trial court, exercising its discretion, determined that, despite defendant's multiple drug-related convictions, the People would be permitted to introduce only defendant's 1997 conviction of criminal sale of a controlled substance in the fifth degree. The stipulation as to defendant's prior conviction was admitted into evidence with a proper limiting instruction, whereupon the People and defense rested and the trial court provided the agency charge to the jury. Defendant was convicted, upon a jury verdict, of criminal sale of a controlled substance in the third degree.

         On appeal, the Appellate Division held that "[u]pon granting the defense request for an agency defense based upon aspects of the People's evidence, the court properly allowed the People to introduce evidence of defendant's prior drug sale conviction" (132 A.D.3d 499, 500 [1st Dept 2015]). The Appellate Division opined that there was

         "no reason to draw a distinction between the situation where a defendant testifies or otherwise elicits evidence to support an agency defense, and the situation where, as here, the defendant essentially adopts those portions of the evidence elicited by the People that support such a defense; in each instance, the People have the right of rebuttal" (id.).

         A Judge of this Court granted defendant leave to appeal (26 N.Y.3d ...


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