People v Mineccia
Annotate this CaseDecided on April 4, 2017
County Court, Monroe County
The People of the State of New York -vs
against
Dominic Mineccia, Defendant.
2016-0494
APPEARANCES:
For the People:
SANDRA DOORLEY, ESQ.
Monroe County District Attorney
BY: MARY RANDALL, ESQ.
ELIZABETH BUCKLEY, ESQ.
47 S. Fitzhugh Street
Rochester, New York 14614
For the Defendant:
JOSEPH DAMELIO, ESQ.
125 State Street
Rochester, New York 14534
Christopher S. Ciaccio, J.
Following the close of the People's proof at the bench trial of the above-captioned indictment, the defendant moved for a trial order of dismissal (CPL § 290.10[1]) with respect to each and every count of the indictment.
For the reasons that follow, the motion is denied. This Decision and Order supplements what was placed on the record in open court.
The defendant is charged as follows: Count One, Criminal Possession of a Controlled Substance in the Third Degree (possession with intent to sell); Count Two, Criminal Sale of A Controlled Substance in the Third Degree; Count Three, Tampering with Physical Evidence; and Count Four, Endangering the Welfare of a Child.
With respect to Counts One and Two, defendant argues that the evidence, even when viewed in the light most favorable to the People, has failed to establish the necessary element of a sale (Count Two) and intent to sell (Count One), in that the heroin defendant bought from a random drug dealer and which he provided to his girlfriend was for their personal use only. Without evidence of a sale, Counts One and Two should be reduced to Criminal Possession of a Controlled Substance in the Seventh Degree, a misdemeanor.
The People oppose.
Defendant's argument here is essentially the agency defense, and although he did not [*2]fully articulate it in the language of the pattern jury charge, defense counsel contended that the defendant was a user only, not a seller as that term is generally understood. Such argument is consistent with the agency defense, which negates the "sell" or "intent to sell" element of the offenses of Criminal Possession of a Controlled Substance in the Third Degree and Criminal Sale of A Controlled Substance in the Third Degree.
Viewing the evidence in the light most favorable to the People, the Court finds that the evidence is legally sufficient to establish each and every element of the offense charge, and in particular, to establish a "sale" and an "intent to sell." The motion is denied,
Under the agency doctrine, "a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer" (People v. Watson, 20 NY3d 182, 185 [2012]). Whether the agency defense applies is generally a question for the fact-finder (see People v Ortiz, 76 NY2d 446, 449 [1990], amended 77 NY2d 821 [1990]; see also People v. Roche, 45 NY2d 78, 86[1979]), as it is a defense which "is not susceptible of meticulous definition" (Roche at 87 [Breitel, Ch. J., Jones and Wachtler, JJ., concurring]).
The determination of whether a person is a seller, or merely a purchaser doing a favor for a friend and thereby acts as an agent, is based upon factors such as the relationship between the buyer and the defendant; who initiated the transaction; who paid for the transaction; and other factors as set forth in the Pattern Jury Instructions.
In attempting to define the scope of the defense and its appropriateness of application, the Court of Appeals has written that "the 'agency defense' in good part may be seen as a common-law attempt, in appropriate cases, to recognize the existence of medical and sociological aspects which complicate the factual setting within which the nature of a particular defendant's participation is to be determined." (People v Roche, 45 NY2d 78, 83—84 [1978]).
And, recognizing the limited applicability of the agency defense, the Court went on to note that "the agency defense rarely, if ever, is credited by the fact finder in the predator (emphasis added) case." (People v Roche, 45 NY2d 78, 84 [1978]).
Here, it is undisputed that the defendant and his girlfriend were known to each other, and that the apparent purpose of the transaction was to benefit each of them. The evidence is silent as to whether there was any profit or benefit accruing to the defendant. Defendant in his statement asserted that the purchase was Ms. Grana's idea, however, as the Court is viewing the evidence in the light most favorable to the People, that self-serving statement is given no weight.
On the other hand, there is evidence that the defendant controlled the heroin before the sale to Ms. Grana, in that he knew where to purchase it, drove to get it, purchased it, transported it back, and cut it into two lines to facilitate her consumption of it. Although there is no direct evidence as to who paid for the heroin, an exchange of text messages between the defendant and his girlfriend regarding defendant's "control" of his girlfriend because "he pays for everything" suggests, or at least allows the court to draw an inference, that defendant paid for the heroin. Finally, the People point out that the defendant touted the quality of the drug, in that he used it first.
Moreover, the Court considers the "medical and sociological setting" of this case that complicates and defies the neat drawing of lines between an agent and a seller, let alone between two people who are in a relationship. As seen in photographs taken at the scene, Defendant and his girlfriend live together in a lavishly decorated, expensive home which neither seem to have the means to pay for. She apparently had taken up with another paramour a few weeks prior, [*3]causing some difficulty between them. They have a child together. They display a Christmas tree and a nativity scene in the living room. Yet, defendant goes and purchases heroin from a random dealer and gives it to his girlfriend, who he knows has just consumed four beers, so they can presumably get utterly, to use a term, "trashed," before going to, of all things, a family Christmas Eve party. And in addition, after cutting a line of heroin for his girlfriend, defendant leaves his child with her while he goes and gets hair gel for himself.
The moral depth to which the defendant has sunk here, the nearly incomprehensible lack of regard for human decency and consideration, let alone consideration for the mother of his child, dictates that the motion must be denied and the decision left to the court as fact-finder. The court takes into account here not only the factors set forth in the Pattern Jury Instruction and case law, but also the "sociological setting", which the evidence, viewed in a light most favorable to the People, reveals to be a classic "predator case," (Roche at 84), a case of one human being taking advantage of and preying on another for personal gain, that gain being, possibly, the defendant's control and dominance over his girlfriend, exercised in part through his procurement of heroin for her. The evidence of the Defendant's relationship toward his girlfriend, then, reflects the "unmistakably dominant part " (People v Roche at 83) he plays in this transaction between them.
Defendant has moved as well to dismiss Count Three, Tampering with Physical Evidence.
Defendant argues that there was no act of concealment and no intent to suppress.
The evidence, viewed in the light most favorable to the People, is otherwise. Defendant moved the body of his girlfriend from the bathroom where he discovered her unconscious or even dead, into his car and then drove around the streets of Greece for an undetermined period of time, and in doing so, delayed calling 911, knowing or having reason to know that any examination of the body would reveal the presence of heroin, and that he might be charged with having supplied it.
His intent to suppress evidence can be judged additionally by the sequence of lies told to law enforcement regarding what had happened that night.
Thus the motion is denied. The evidence establishes that the defendant committed an act of concealment with the intent of suppressing the evidence in contemplation of an official proceeding (see People v. Nicholas, 70 AD2d 804 [1st Dept 1979]: "While it is true that at the time defendant allegedly moved the body there was no official proceeding pending, a prospective official proceeding could readily be contemplated. The moving of the body prior to an official proceeding being begun constituted tampering with physical evidence.").
Finally, the motion to dismiss the Fourth Count, Endangering the Welfare of a Child, is denied as well. The largely undisputed facts show that the Defendant left his child with the mother knowing or having reason to know that she was drunk or had consumed a large amount of alcohol and was about to consume heroin. Additionally, he drove for an undetermined period of time with the child in the back car seat while his mother's dead body reclined in the front seat, her lifeless head a couple of feet from where he was sitting. Defendant argues that ho harm actually came to the child, however, actual harm to the child need not result nor does defendant's conduct need not be specifically directed at a child (see Pattern Criminal Jury Instructions, Penal Law §260.10[1]). The evidence regarding the Fourth Count is legally sufficient.
This constitutes the ORDER of the Court.
Dated: April 4, 2017
Rochester, New York
___________________________________________
HON. Christopher S. Ciaccio
Monroe County Court Judge
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