                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 7, 2016                    106914
________________________________

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

FORREST F. GALLO,
                    Respondent.
________________________________


Calendar Date:   November 19, 2015

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

                              __________


      Stephen K. Cornwell Jr., District Attorney, Binghamton
(Kristen L. Grabowski of counsel), for appellant.

     Torrance L. Schmitz, Vestal, for respondent.

                              __________


Egan Jr., J.

      Appeal from an order of the County Court of Broome County
(Smith, J.), entered May 12, 2014, which granted defendant's
motion to dismiss the indictment.

      In May 2013, defendant was indicted and charged with one
count of criminal sale of marihuana in the second degree. The
charge stemmed from an incident that occurred in December 2012
when defendant, then a 16-year-old high school student, procured
what he described as an approximately one-half gram bag of
marihuana for a fellow 14-year-old student. In August 2013,
defense counsel filed an omnibus motion seeking, among other
things, to dismiss the indictment pursuant to CPL 210.30,
contending that the evidence before the grand jury was legally
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insufficient to sustain the charged crime. After reviewing the
grand jury minutes, County Court (Lehmann, J.) denied defendant's
motion to dismiss the indictment.

      Defendant waived his right to a jury trial and, when the
parties appeared before County Court (Smith, J.) in May 2014 for
the scheduled bench trial,1 defense counsel raised the issue of
the People's failure to instruct the grand jury as to an agency
defense. County Court asked defense counsel to submit a formal
motion and, following receipt of the parties' respective
submissions, County Court granted defendant's motion and
dismissed the indictment as defective within the meaning of CPL
210.35 (5) – with leave for the People to re-present the matter
to another grand jury within 30 days. This appeal by the People
ensued.

      The People initially contend that County Court erred in
reinspecting the grand jury minutes to determine whether, due to
the People's failure to instruct the grand jury as to the defense
of agency, the underlying proceeding was defective – contending
that Judge Lehmann's initial ruling as to the sufficiency of the
grand jury proceedings constituted the law of the case. We
disagree. Although this "judicially crafted policy" is
applicable to criminal matters (People v Evans, 94 NY2d 499, 503-
504 [2000]), we find that its application is not warranted here.
Defendant's omnibus motion indeed requested, among other things,
that Judge Lehmann review the instructions given to the grand
jury "as potentially being misleading and inconsistent with the
law." However, the crux of defendant's initial motion – brought
pursuant to CPL 210.30 (3) – was addressed to the legal
sufficiency of the evidence before the grand jury. Defendant's
subsequent motion relative to the People's failure to charge the
grand jury as to an agency defense – brought pursuant to CPL
210.35 (5) – contended that the grand jury proceeding itself was
defective for "fail[ing] to conform to the requirements of [CPL
article 190] to such degree that the integrity thereof [was]
impaired and prejudice to the defendant may [have] result[ed]"


     1
        This matter was transferred to Judge Smith following
Judge Lehmann's retirement.
                              -3-                106914

(CPL 210.35 [5]). Given that defendant's respective motions were
brought pursuant to – and ultimately resolved under – decidedly
different statutes, we do not find that County Court abused its
discretion in declining to apply the law of the case doctrine to
this matter.

      Turning to the merits, while there is no requirement that
the grand jury "be charged with every potential defense suggested
by the evidence" (People v Valles, 62 NY2d 36, 38 [1984]), the
People "must charge . . . those defenses that the evidence will
reasonably support" (People v Coleman, 4 AD3d 677, 678 [2004],
lvs denied 2 NY3d 797 [2004], 3 NY3d 672 [2004]; accord People v
Angona, 119 AD3d 1406, 1407 [2014], lv denied 25 NY3d 987
[2015]). As this Court recently reiterated, "[u]nder 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. Whether the defendant was a seller, or merely a purchaser
doing a favor for a friend, is generally a factual question [to
be resolved] . . . based upon [considerations of] factors such as
the relationship between the buyer and the defendant, who
initiated the transaction, whether the defendant had previously
engaged in drug transfers and whether he or she profited from the
sale" (People v Kramer, 118 AD3d 1040, 1041-1042 [2014] [internal
quotation marks and citations omitted]).

      Here, the testimony before the grand jury revealed that the
buyer – having been told by her stepbrother that it "was cool to
try" marihuana – asked a friend where she could make such a
purchase; the friend, in turn, pointed to defendant, the latter
of whom apparently "was kind of friends" with the buyer's
stepbrother. The buyer then approached defendant, gave him $10
to buy marihuana and was told to "come pick it up fifth period."
When asked by the Assistant District Attorney how she knew to
provide this specific sum of money, the buyer replied, "My
[step]brother just said, get $10." The buyer and her stepbrother
thereafter met defendant to retrieve the drugs. Because the
buyer did not know how to do "a handoff," her stepbrother and
defendant "did some like weird handshake thing," following which
the buyer's stepbrother handed the drugs to the buyer. In
addition to the buyer's testimony, the grand jury reviewed
                              -4-                106914

defendant's written statement, wherein defendant admitted that he
was approached by the buyer and, at her request, procured
marihuana "and gave it to her after fifth period." As to the
amount of money that he received from the buyer, defendant
indicated in his written statement that the buyer gave him $11
and that he, in turn, paid $10 for the marihuana. However, the
buyer testified that she gave defendant $10 to purchase
marihuana, and the assistant principal who questioned defendant
following the underlying transaction testified that defendant
told her that he was given $10 by the buyer in order to purchase
marihuana. No further inquiry was made regarding the apparent
inconsistency between defendant's written statement and the
testimony before the grand jury on this point.

      Upon reviewing the record, we agree with County Court that
the evidence before the grand jury reasonably supported the
defense of agency; hence, the People's failure to instruct the
grand jury in this regard rendered that proceeding defective –
particularly in view of the fact that the People were on notice
of this potential defense prior to the commencement thereof.
There is no question that it was the buyer who initiated the sale
and, given the relationship between defendant and the buyer's
stepbrother, the evidence reasonably suggested that defendant was
doing a favor for the stepsister of one of his friends.
Additionally, none of the testimony offered before the grand jury
revealed that defendant had a prior history of drug sales, and
the evidence that defendant profited from the subject transaction
was tenuous at best. Under these circumstances, County Court
properly granted defendant's motion to dismiss the indictment
under CPL 210.35 (5) (compare People v Coleman, 4 AD3d at 678;
People v Walker, 265 AD2d 835, 835-836 [1999], lv denied 94 NY2d
831 [1999]; People v Ortiz, 188 AD2d 389, 390 [1992], lv denied
81 NY2d 1017 [1993]).

     Lahtinen, J.P., McCarthy, Lynch and Devine, JJ., concur.
                        -5-                  106914

ORDERED that the order is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
