                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   December 11, 2014               104224
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________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

TERRANCE D. ROBINSON, Also
   Known as Z,
                    Appellant.
________________________________


Calendar Date:   October 10, 2014

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


     Alexander W. Bloomstein, Hillsdale, for appellant.

      Paul Czajka, District Attorney (James A. Carlucci of
counsel), for respondent.

                             __________


Egan Jr., J.

      Appeals (1) from a judgment of the County Court of Columbia
County (Nichols, J.), rendered April 20, 2011, convicting
defendant following a nonjury trial of the crime of criminal sale
of a controlled substance in the third degree (two counts), (2)
from a judgment of said court, rendered September 4, 2012, which
resentenced defendant following said conviction, and (3) by
permission, from an order of said court, entered April 23, 2013,
which denied defendant's motion pursuant to CPL 440.20 to set
aside his sentence, without a hearing.
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      Defendant was indicted and charged with two counts of
criminal sale of a controlled substance in the third degree. The
charges stemmed from defendant's sale of crack cocaine to an
undercover Columbia County sheriff's deputy in April 2009 and May
2009. Following a nonjury trial, at which defendant testified in
support of his agency defense, defendant was convicted as charged
and was sentenced, as a second violent felony offender, to an
aggregate prison term of 16 years followed by three years of
postrelease supervision. When the Court of Appeals reversed the
conviction that formed the basis for defendant's predicate felony
(People v Robinson, 17 NY3d 868 [2011]), defendant moved to be
resentenced pursuant to CPL 440.20; County Court granted
defendant's application and resentenced him to an aggregate
prison term of eight years followed by two years of postrelease
supervision. In response, defendant again sought resentencing,
claiming that he was entitled to an updated presentence report
pursuant to CPL 390.20. County Court denied defendant's motion
and these appeals ensued.

      We affirm. To the extent that defendant contends that the
underlying conviction is not supported by legally sufficient
evidence, we note that defendant's generalized motion to dismiss
at the close of the People's case was insufficient to preserve
his present claim, i.e., that the People failed to disprove his
agency defense beyond a reasonable doubt (see People v
Greenfield, 112 AD3d 1226, 1226 [2013], lv denied 23 NY3d 1037
[2014]; People v Simmons, 103 AD3d 1027, 1029 [2013], lv denied
21 NY3d 1009 [2013]). Additionally, defendant, who testified
upon his own behalf, failed to renew this motion at the close of
all proof; accordingly, defendant's challenge to the legal
sufficiency of the evidence is not preserved for our review (see
People v Fisher, 89 AD3d 1135, 1136 [2011], lv denied 18 NY3d 883
[2012]; People v Race, 78 AD3d 1217, 1219 [2010], lv denied 16
NY3d 835 [2011]). "That said, our weight of the evidence
[analysis] necessarily involves an evaluation of whether all
elements of the charged crime[s] were proven beyond a reasonable
doubt at trial" (People v Menegan, 107 AD3d 1166, 1169 [2013]
[internal quotation marks and citations omitted]; see People v
Ramirez, 118 AD3d 1108, 1110 [2014]).
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      Insofar as is relevant here, "[a] person is guilty of
criminal sale of a controlled substance in the third degree when
he or she knowingly and unlawfully sells . . . a narcotic drug"
(Penal Law § 220.39 [1]). Defendant does not dispute that he
sold a narcotic drug, i.e., cocaine, to the undercover deputy on
the dates in question, but contends that he acted solely as the
deputy's agent in this regard and, at best, is guilty of criminal
possession of a controlled substance (see People v Lam Lek Chong,
45 NY2d 64, 74 [1978], cert denied 439 US 935 [1978]; People v
Mitchell, 112 AD3d 1071, 1071 [2013], lv denied 22 NY3d 1140
[2014]). Under the agency doctrine, a person who procures drugs
solely as the agent of a buyer is not guilty of either criminal
sale or of possession with the intent to sell (see People v
Kramer, 118 AD3d 1040, 1041 [2014]). "[W]hether the defendant
was a seller, or merely a purchaser doing a favor for a friend,
is generally a factual question for the [factfinder] to resolve
on the circumstances of the particular case" (id. at 1041
[internal quotation marks and citation omitted]; accord People v
Mitchell, 112 AD3d at 1071-1072; see People v Monykuc, 97 AD3d
900, 902 [2012]; People v Johnson, 91 AD3d 1115, 1117 [2012], lv
denied 18 NY3d 959 [2012]). Such a determination, in turn, may
hinge upon a number of factors, including "the nature and extent
of the relationship between the defendant and the buyer, whether
it was the buyer or the defendant who suggested the purchase,
whether the defendant has had other drug dealings with this or
other buyers or sellers and, of course, whether the defendant
profited, or stood to profit, from the transaction" (People v Lam
Lek Chong, 45 NY2d at 75; see People v Kramer, 118 AD3d at 1042;
People v Monykuc, 97 AD3d at 902). Notably, profit does not
necessarily equate with pecuniary gain; indeed, this Court has
recognized that a defendant may stand to benefit from the
underlying sale when such transaction was undertaken in the hopes
of receiving either assistance in getting a job (see People v
Jones, 77 AD3d 1170, 1172 [2010], lv denied 16 NY3d 896 [2011])
or sex (see People v Johnson, 91 AD3d at 1117) in exchange for
obtaining the requested drugs.

      Here, the undercover deputy testified that she was
introduced to defendant by a confidential informant; defendant
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provided the deputy with his phone number and told her to call
him Z. Thereafter, on April 21, 2009 and May 21, 2009, the
deputy contacted defendant at the number previously provided,
told him that she needed a specific dollar amount of drugs and
met with defendant at the agreed-upon locations, at which time
defendant provided her with a substance that subsequently tested
positive for cocaine. According to the deputy, at no time did
defendant indicate either that he would need to procure the drugs
from someone else or that he was doing so merely as a favor to
her. Although defendant admitted that he sold drugs to the
deputy on the days in question, he contended that he obtained the
drugs from other people and did so only as a favor to the deputy,
stating, "I don't deal with that." Defendant further testified
that he did not profit from the transactions and acquiesced to
the deputy's request because he "was attracted to her" and "was
trying to get to know her" as a "friend." On cross-examination,
defendant offered inconsistent testimony as to whether he had
engaged in drug sales prior to April 21, 2009, prompting the
People to recall the deputy, who testified on rebuttal that she
witnessed defendant sell drugs to a confidential informant on two
occasions before that date.1

      Although the deputy and defendant provided conflicting
accounts of the subject transactions, this presented a
credibility issue for County Court to resolve (see People v
Kramer, 118 AD3d at 1042). Accordingly, while a different result
would not have been unreasonable, viewing the evidence in a
neutral light and deferring to County Court's credibility
determinations, we do not find defendant's conviction to be
against the weight of the evidence (see People v Johnson, 91 AD3d
at 1117). Defendant's related challenge in this regard – namely,
that the People failed to establish that the substance he sold
was in fact cocaine – is unpreserved for our review (see id. at


     1
        Inasmuch as defendant affirmatively denied that he ever
sold drugs prior to April 21, 2009, the proffered rebuttal
testimony – to which defense counsel objected – was entirely
proper (see People v Alvino, 71 NY2d 233, 247 [1987]).
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1115) and, in any event, is lacking in merit.

      Defendant's remaining arguments are equally unavailing.
With respect to County Court's suppression rulings, we do not
find the subject photo array to be unduly suggestive (see People
v Pendelton, 90 AD3d 1234, 1236-1237 [2011], lv denied 18 NY3d
996 [2012]; People v Deshields, 24 AD3d 1112, 1112-1113 [2005],
lv denied 6 NY3d 811 [2006]), nor are we persuaded that the
identification procedures employed therein violated due process.
In any event, identification ultimately was not an issue, as
defendant readily admitted his participation in the subject
transactions. Similarly, with regard to County Court's Sandoval
ruling, we are satisfied that the prior conviction "reflected
defendant's willingness to place his interests above those of
society" and that County Court, in turn, properly balanced the
probative value of the conviction against its prejudicial effect
(People v Alnutt, 101 AD3d 1461, 1464 [2012], lv denied 21 NY3d
941 [2013], cert denied ___ US ___, 134 S Ct 1035 [2014]).2 To
the extent that defendant challenges County Court's sua sponte
questioning of certain witnesses, we note that defendant failed
to lodge any objection in this regard and, therefore, this issue
is unpreserved for our review (cf. People v Robinson, 121 AD3d
1179, 1180 [2014]). In any event, County Court clearly "is
permitted to raise matters on its own initiative in order to
elicit significant facts, clarify or enlighten an issue or to
facilitate the orderly and expeditious progress of the trial"
(People v Lupo, 92 AD3d 1136, 1138 [2012] [internal quotation
marks and citation omitted]).


    2
        Although the prior conviction subsequently was reversed
by the Court of Appeals (People v Robinson, 17 NY3d 868 [2011],
supra), County Court's Sandoval ruling nonetheless was proper at
the time that it was made. In any event, by virtue of its
"learning, experience and judicial discipline," County Court was
more than "capable . . . of making an objective determination
based upon appropriate legal criteria" (People v Green, 84 AD3d
1499, 1500 [2011], lv denied 17 NY3d 953 [2011] [internal
quotation marks and citations omitted]).
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      We also find no merit to defendant's claim that he was
denied the effective assistance of counsel. "So long as the
evidence, the law, and the circumstances of a particular case,
viewed in totality and as of the time of the representation,
reveal that the attorney provided meaningful representation, the
constitutional requirement will have been met" (People v Bush,
107 AD3d 1302, 1302 [2013] [internal quotation marks and
citations omitted]; accord People v Shuaib, 111 AD3d 1055, 1057
[2013]). Here, the record reflects that defense counsel made
appropriate objections, effectively cross-examined the People's
witnesses, challenged the chain of custody, advanced a plausible
defense and articulated a cogent closing statement. Accordingly,
we are satisfied that defendant received meaningful
representation (see People v Kenyon, 108 AD3d 933, 940 [2013], lv
denied 21 NY3d 1075 [2013]).

      As for defendant's various sentencing challenges, we reject
defendant's assertion that the sentence imposed was harsh and
excessive. Further, we find no merit to defendant's claim that
County Court erred in resentencing him without first obtaining an
updated presentence report and/or in denying his subsequent
motion to be resentenced upon this ground. Initially, defendant
raised no objection in this regard at the time of his
resentencing in September 2012 and, to that extent, cannot now be
heard to complain. In any event, and more specifically with
regard to the denial of defendant's subsequent motion, "[w]hether
to obtain an updated presentence report is a matter resting
within the discretion of the sentencing court" (People v
Williams, 114 AD3d 993, 994 [2014], lv denied 23 NY3d 969 [2014]
[internal quotation marks and citations omitted]). Here,
defendant had been continuously incarcerated since the imposition
of the original sentence, defendant was afforded an opportunity
to address the court at resentencing and County Court, having
presided over defendant's trial, was well aware of the issues
underlying the resentencing and defendant's intervening history.
Under these circumstances, we discern no abuse of County Court's
discretion in resentencing defendant without first obtaining an
updated presentence report (see id. at 994; People v Lakatosz, 89
AD3d 1329, 1330 [2011], lvs denied 18 NY3d 925 [2012]) or in
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denying his subsequent motion with respect thereto. Defendant's
remaining contentions, to the extent not specifically addressed,
have been examined and found to be lacking in merit.

     McCarthy, J.P., Lynch, Devine and Clark, JJ., concur.



     ORDERED that the judgments and order are affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
