People v Abdallah

People v Abdallah 2013 NY Slip Op 08017 Decided on December 3, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 3, 2013
Tom, J.P., Saxe, DeGrasse, Richter, Clark, JJ.
11217 4457N/10

[*1]The People of the State of New York, Respondent,

v

Kamal Abdallah, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Robert S. Dean of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jared
Wolkowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered March 21, 2012, as amended May 16, 2012, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal sale of a controlled substance near school grounds and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to concurrent terms of six years, unanimously affirmed.

To the extent defendant is making a legal sufficiency claim, it is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The evidence supports the jury's rejection of defendant's agency defense. There is no basis for disturbing the jury's credibility determinations. To be the buyer's agent, a person "must be a mere extension of the buyer," who procures drugs "because the buyer has asked him to do so, but not out of any independent desire or inclination to promote the transaction" (People v Argibay, 45 NY2d 45, 53-54 [1978]). A person who acts as a middleman or a broker between a seller and a buyer, "aiming to satisfy both, but largely for his own benefit, cannot properly be termed an agent of either" (Argibay, 45 NY2d at 53). Although "the receipt of an incidental benefit does not in itself negate an agency defense" (People v Echevarria, 21 [*2]NY3d 1, 21 [2013]), defendant's demand for a $10 "transportation fee," without which he refused to complete the $20 transaction, was more than an incidental benefit or tip (see People v Lam Lek Chong, 45 NY2d 64, 74-76 [1978], cert denied 439 US 935 [1978]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 3, 2013

CLERK