People v. Kemp

Appellate Division of the Supreme Court of New York

People v. Kemp

27 A.D.3d 203, 809 N.Y.S.2d 452

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 2, 2006

StatusPublished

This text of 27 A.D.3d 203 (People v. Kemp) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Kemp, 27 A.D.3d 203, 809 N.Y.S.2d 452 (N.Y. Ct. App. 2006).

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Opinion

Judgment, Supreme Court, New York County (Marcy L. Kahn, J), rendered March 14, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years and 1 year, respectively, unanimously affirmed.

Defendant failed to preserve his claim that the evidence was insufficient to disprove his agency defense and we decline to review it in the interest of justice. Were we to review this claim, we would find that the verdict was based on legally sufficient evidence. We further find that the verdict was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning credibility (see People v Gaimari, 176 NY 84, 94 [1903]). The police testimony established that defendant was a participant in the drug-selling operation rather than an agent of the buyer. In any event, defendant’s testimony, even if believed, established that his sole or primary motivation was his own economic benefit (see e.g. People v Taim, 283 AD2d 363 [2001], lv denied 96 NY2d 908 [2001]).

Defendant’s argument about the court’s charge on the agency defense is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court’s agency charge was appropriate in the context of the evidence presented (see People v Job, 87 NY2d 956, 957 [1996]). [204]*204Accordingly, counsel was not ineffective for failing to except to the charge, and defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Concur—Buckley, P.J., Andrias, Saxe, Friedman and Williams, JJ.

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Judgment, Supreme Court, New York County (Marcy L. Kahn, J), rendered March 14, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years and 1 year, respectively, unanimously affirmed.

Defendant failed to preserve his claim that the evidence was insufficient to disprove his agency defense and we decline to review it in the interest of justice. Were we to review this claim, we would find that the verdict was based on legally sufficient evidence. We further find that the verdict was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning credibility (see People v Gaimari, 176 NY 84, 94 [1903]). The police testimony established that defendant was a participant in the drug-selling operation rather than an agent of the buyer. In any event, defendant’s testimony, even if believed, established that his sole or primary motivation was his own economic benefit (see e.g. People v Taim, 283 AD2d 363 [2001], lv denied 96 NY2d 908 [2001]).

Defendant’s argument about the court’s charge on the agency defense is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court’s agency charge was appropriate in the context of the evidence presented (see People v Job, 87 NY2d 956, 957 [1996]). [204]*204Accordingly, counsel was not ineffective for failing to except to the charge, and defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Concur—Buckley, P.J., Andrias, Saxe, Friedman and Williams, JJ.

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27 A.D.3d 203, 809 N.Y.S.2d 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kemp-nyappdiv-2006.

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