                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 18, 2015                     104790
________________________________

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

GREGORY LEE,
                    Appellant.
________________________________


Calendar Date:   April 29, 2015

Before:   Peters, P.J., Garry, Rose and Devine, JJ.

                             __________


      Salvatore C. Adamo, Albany, for appellant, and appellant
pro se.

      D. Holley Carnright, District Attorney, Kingston (Carly
Wolfrom of counsel), for respondent.

                             __________


Garry, J.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered December 14, 2011, upon a verdict
convicting defendant of the crimes of criminal sale of a
controlled substance in the third degree (two counts) and
criminal possession of a controlled substance in the third degree
(two counts).

      In April 2011, defendant was arrested for possessing and
selling heroin and cocaine in the Town of Saugerties, Ulster
County. He was indicted on three counts each of criminal sale of
a controlled substance in the third degree and criminal
possession of a controlled substance in the third degree.
Following a jury trial, he was convicted of two counts of each
                              -2-                104790

offense and sentenced as a second felony offender to an aggregate
prison term of 18 years, followed by three years of postrelease
supervision. Defendant appeals.

      Initially, we reject defendant's claim that he was denied a
fair trial by County Court's refusal to recuse itself. Where, as
here, there are no grounds for legal disqualification (see
Judiciary Law § 14), a trial judge's decision as to whether
recusal is necessary will not be disturbed absent a clear abuse
of discretion (see People v Moreno, 70 NY2d 403, 406 [1987];
People v Lerario, 43 AD3d 492, 492-493 [2007]; People v Wallis,
24 AD3d 1029, 1031 [2005], lv denied 6 NY3d 854 [2006]).
Defendant based his motion for recusal on the fact that the
County Judge who presided over his trial had been the District
Attorney in 2005, when defendant was prosecuted by his office on
a similar drug-related charge. Defendant has acknowledged that
the trial was handled by assistant district attorneys and that,
to his knowledge, the Judge did not participate. Nevertheless,
defendant asserted that the Judge must have been aware of the
2005 prosecution and, as a result, acquired prejudicial
information. In denying the motion, the Judge stated
unequivocally that he had no memory of the prior prosecution, no
knowledge or information about defendant other than the evidence
in the current prosecution, and no reservations as to whether he
could be fair and impartial. Nothing in our review of the record
controverts these statements or suggests any bias or prejudice.
Accordingly, we find no abuse of discretion (see People v
Curkendall, 12 AD3d 710, 714 [2004], lv denied 4 NY3d 743 [2004];
People v West, 254 AD2d 315, 315 [1998]; People v Rosato, 193
AD2d 1052, 1053 [1993], lv denied 84 NY2d 910 [1994]; People v
Jones, 143 AD2d 465, 466-467 [1988]).

      Defendant next claims that his convictions were not
supported by legally sufficient evidence and that the verdict was
against the weight of the evidence. The People sought to prove
that defendant sold narcotics to a confidential informant
(hereinafter CI) and an undercover officer in two controlled buys
in March 2011. The CI testified that she agreed to participate
in the controlled buys in exchange for favorable treatment of her
alleged involvement in unrelated drug transactions. On both
occasions, she telephoned defendant and arranged to meet him at a
                              -3-                104790

motel to purchase drugs. Before each transaction, she was
searched, provided with a body wire and given prerecorded
currency. She and an undercover officer then met defendant in
the motel parking lot, where he accepted the buy money and, in
exchange, provided them with heroin in the first transaction and
with heroin and crack cocaine in the second transaction. Members
of a law enforcement drug task force observed both controlled
buys from a nearby van and made audio and video recordings of the
transactions as they occurred. The undercover officer then
retained possession of the drugs, which were subsequently tested
and identified as heroin and cocaine. At trial, the CI and the
undercover officer identified defendant as the person who
participated in both transactions, officers who observed the
transactions testified as to what they had seen and heard, and
the audio and video recordings were played for the jury.

      Defendant relied upon an agency defense at trial. Although
conceding that he participated in both exchanges, he claimed that
he merely acted as an agent for the true seller, did not intend
to sell the drugs or profit from the transactions, and provided
the drugs as a favor to the CI, who had told him that she and her
companion – the undercover officer – were suffering from
withdrawal symptoms. This testimony presented factual questions
and credibility assessments for the jury, which had the
opportunity to hear defendant's testimony and observe his
demeanor (see People v Lam Lek Chong, 45 NY2d 64, 74-75 [1978],
cert denied 439 US 935 [1978]; People v Mitchell, 112 AD3d 1071,
1071-1072 [2013], lv denied 22 NY3d 1140 [2014]). It was
likewise the jury's province to resolve inconsistencies and
conflicts that defendant now contends rendered the trial
testimony unworthy of belief, all of which were thoroughly
explored on cross-examination. Viewing the evidence in the light
most favorable to the People, we find a "valid line of reasoning
and permissible inferences which could lead a rational person to
the conclusion reached by the jury" (People v Bleakley, 69 NY2d
490, 495 [1987]; see People v Guthrie, 57 AD3d 1168, 1170 [2008],
lv denied 12 NY3d 816 [2009]). Further, viewing the evidence in
a neutral light and deferring to the jury's credibility
assessments, we find that the People met their burden to disprove
the agency defense and that the verdict was not contrary to the
weight of the evidence (see People v Robinson, 123 AD3d 1224,
                              -4-                104790

1226-1227 [2014], lvs denied 25 NY3d 992, 993 [2015]; People v
Mitchell, 112 AD3d at 1073; People v Johnson, 91 AD3d 1115, 1116-
1117 [2012], lv denied 18 NY3d 959 [2012]).

      County Court did not err in its Molineux, Ventimiglia or
Sandoval rulings. During a joint pretrial hearing, the court
denied the People's request to introduce evidence of certain
prior convictions and bad acts, specifically including two 2005
convictions for criminal sale of a controlled substance in the
third degree and certain alleged prior drug sales to the CI. The
court found that the prejudicial effect of this evidence
outweighed its probative value, but warned that this ruling could
change if defendant opened the door during trial. Thereafter,
defendant asserted his agency defense during his opening
statement, and the People renewed their prior application. The
court found that defendant had opened the door, conducted an
additional Ventimiglia/Molineux hearing, and concluded that the
evidence was relevant to rebut defendant's agency defense and
demonstrate his intent to sell narcotics, and that its probative
value outweighed its potential for prejudice. We find no error.
It is well established that a defendant opens the door to
Molineux evidence by asserting an agency defense (see People v
Mitchell, 112 AD3d at 1073; People v Nealon, 36 AD3d 1076, 1078
[2007], lv denied 8 NY3d 988 [2007]; People v Ortiz, 259 AD2d
979, 980 [1999], lv denied 93 NY2d 1024 [1999]), and any
potential prejudice was mitigated by the court's timely and
proper limiting instructions (see People v Small, 12 NY3d 732,
733 [2009]).

      As for County Court's Sandoval rulings, the People sought
before the trial to impeach defendant with evidence of his
numerous prior convictions and bad acts in the event that he
elected to testify. Upon such an application, a trial court, in
its discretion, "may exclude the evidence entirely; limit the
prosecution's inquiry to the mere fact that there has been a
prior conviction; it may limit inquiry to the existence and
nature of the prior conviction; or it may permit examination into
the facts and circumstances underlying the prior conviction"
(People v Smith, 18 NY3d 588, 593 [2012] [internal quotation
marks and citations omitted]). During the joint hearing, the
court carefully considered each of defendant's prior convictions
                              -5-                104790

and ruled on the extent to which the People could question him,
precluding all inquiry into some of the convictions and limiting
the People's inquiry into the nature and underlying circumstances
of almost all of the others. When defendant testified at trial,
the People questioned him in accord with these directions, and
defendant offered no objections. Considering the numerous
restrictions imposed as a result of the court's careful analysis,
we find no abuse of discretion (see People v Nichol, 121 AD3d
1174, 1175-1176 [2014]).

      Defendant next contends that County Court erred by granting
the jury's request to allow the second seated juror to take over
the duties of the jury foreperson. However, defendant was
present and raised no objection when his counsel affirmatively
consented to the substitution, and his counsel did not object
when the decision was communicated to the jury. Even if the
substitution was in some manner erroneous, it did not constitute
a mode of proceedings error and, contrary to defendant's
contention, preservation was required (see People v Alexander,
104 AD3d 1221, 1221 [2013], lv denied 21 NY3d 941 [2013]; see
generally People v Agramonte, 87 NY2d 765, 769-770 [1996]). We
decline to take corrective action in the interest of justice.

      Defendant was not denied a fair trial by County Court's
refusal to instruct the jury as to an intoxication defense. Such
a charge is warranted when "there is sufficient evidence of
intoxication in the record for a reasonable person to entertain a
doubt as to the element of intent on that basis . . . [or when]
the record contains evidence of the recent use of intoxicants of
such nature or quantity to support the inference that their
ingestion was sufficient to affect [the] defendant's ability to
form the necessary criminal intent" (People v Rodriguez, 76 NY2d
918, 920 [1990] [internal quotation marks and citations
omitted]). Here, there was no evidence that defendant was
intoxicated at the time of the drug transactions except for his
own self-serving testimony, and such "bare assertions," standing
alone, do not warrant an intoxication charge (People v Sirico, 17
NY3d 744, 745 [2011]; accord People v Duffy, 119 AD3d 1231, 1234
[2014], lv denied 24 NY3d 1043 [2014]). Likewise, the court
properly rejected defendant's request for an instruction on the
definition of a mandated reporter pursuant to Social Services Law
                              -6-                  104790

§ 413. Defendant's claim that the police had improperly failed
to report the CI to a child protective agency had no bearing on
his guilt, and the requested charge would only have served to
confuse the jurors.

      Although defendant now contends that County Court responded
improperly to a jury note, his counsel agreed to the court's
proposed response in defendant's presence and did not object when
the response was communicated to the jury. Our review of the
record reveals that the court complied with its "core
responsibilit[ies]" to give counsel notice of the specific
contents of the note and an opportunity to participate in framing
appropriate responses, and to provide the jury with a meaningful
response (People v Kisoon, 8 NY3d 129, 134 [2007]; see CPL
310.30; People v O'Rama, 78 NY2d 270, 276 [1991]). Accordingly,
preservation was required, and we decline to take corrective
action in the interest of justice (see People v Woodrow, 89 AD3d
1158, 1160 [2011], lv denied 19 NY3d 978 [2012]; People v Rivera,
83 AD3d 1370, 1370-1371 [2011], lv denied 17 NY3d 904 [2011]).

      Finally, we reject defendant's contention that his sentence
was harsh and excessive. He was not sentenced to the maximum
permissible term (see Penal Law § 70.70 [3] [b] [i]), and the
record provides no support for his claim that he was punished for
exercising his right to trial (see People v Nichol, 121 AD3d at
1178; People v Massey, 45 AD3d 1044, 1048 [2007], lv denied 9
NY3d 1036 [2008]). In view of defendant's lack of remorse and
his extensive criminal history – which dates back to 1984 and
includes convictions for robbery, kidnapping and assault, as well
as drug-related offenses – we perceive no abuse of discretion or
extraordinary circumstances warranting a reduction in the
interest of justice (see People v McDonald, 43 AD3d 1207, 1207
[2007], lv denied 10 NY3d 867 [2008]; People v Davis, 4 AD3d 567,
568 [2004], lv denied 2 NY3d 798 [2004]).

     Peters, P.J., Rose and Devine, JJ., concur.
                        -7-                  104790

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
