People v Massey
2008 NY Slip Op 02750 [49 AD3d 462]
March 27, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 14, 2008

The People of the State of New York, Respondent,
Ronald Massey, Appellant.

[*1] Steven Banks, The Legal Aid Society, New York City (Alan Axelrod of counsel), and Simpson Thacher & Bartlett LLP, New York City (Meryl G. Rosen of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Eric Rosen of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol Berkman, J., at hearing; Edward J. McLaughlin, J., at jury trial and sentence), convicting defendant of criminal sale of a controlled substance in the third degree and resisting arrest, and sentencing him, as a second felony drug offender, to an aggregate term of four years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility. The account of the transaction given by the prosecution witnesses was at odds with defendant's agency defense (see e.g. People v Lam Lek Chong, 45 NY2d 64, 74-75 [1978], cert denied 439 US 935 [1978]), and defendant's present argument rests on his own testimony, which the jury was entitled to reject. Defendant's arguments concerning the resisting arrest conviction are without merit.

As defendant concedes, the fact that he interposed an agency defense permitted the People to introduce evidence of prior drug sales. We reject defendant's argument that the court permitted elicitation of excessive and prejudicial details about his prior drug sale conviction. The challenged evidence was highly probative to refute his agency defense, and that probative value outweighed the potential for undue prejudice (see People v Castaneda, 173 AD2d 349, 350 [1991], lv denied 78 NY2d 963 [1991]), which the court minimized by means of a limiting instruction. Moreover, defendant specifically opened the door to inquiry into the facts of his prior case when, on cross-examination, he testified that he was innocent of the prior crime notwithstanding his guilty plea in that case.

The court properly denied defendant's suppression motion. Defendant's generalized argument that the police lacked probable cause for his arrest failed to preserve his present contentions (see People v Tutt, 38 NY2d 1011 [1976]), and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. The hearing evidence warranted the conclusion that the arresting officer acted [*2]lawfully, pursuant to the fellow officer rule (see People v Ketcham, 93 NY2d 416 [1999]; People v Green, 2 AD3d 279 [2003], lv denied 2 NY3d 740 [2004]). Concur—Friedman, J.P., Gonzalez, McGuire and Moskowitz, JJ.