State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 106905 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

CHRISTOPHER M. VANGUILDER,

Appellant.

________________________________

Calendar Date: May 26, 2015

Before: Lahtinen, J.P., McCarthy, Rose and Clark, JJ.

__________

Robert Gregor, Lake George, for appellant.

G. Scott Walling, Special Prosecutor, Schenectady, for

respondent.

__________

McCarthy, J.

Appeal from a judgment of the County Court of Saratoga

County (Scarano, J.), rendered May 30, 2014, upon a verdict

convicting defendant of the crimes of criminal sale of a

controlled substance in the third degree (two counts), criminal

possession of a controlled substance in the third degree (two

counts) and criminal possession of a controlled substance in the

seventh degree (two counts).

On two separate occasions, a police officer fit a

confidential informant (hereinafter the CI) with a recording

device and sent him into defendant's mobile home in Saratoga

County to buy crack cocaine. After both controlled buys

occurred, defendant and Sadie Willis were indicted for the crimes

of criminal sale of a controlled substance in the third degree
-2- 106905 

(two counts), criminal possession of a controlled substance in

the third degree (two counts) and criminal possession of a

controlled substance in the seventh degree (two counts). In full

satisfaction of the indictment against her, Willis pleaded guilty

to attempted sale of a controlled substance in the third degree

and agreed to testify against defendant. Following a jury trial,

at which defendant raised the defense of agency, defendant was

convicted as charged and sentenced, as a second felony drug

offender, to an aggregate prison term of 10 years to be followed

by six years of postrelease supervision. Defendant appeals.

The verdict is supported by legally sufficient evidence and

is not against the weight of such evidence. As relevant here,

the People were required to establish that defendant knowingly

and unlawfully possessed a narcotic drug with intent to sell it

(see Penal Law § 220.16 [1]), and that defendant knowingly and

unlawfully sold a narcotic drug (see Penal Law § 220.39 [1]). 

Additionally, since defendant advanced an agency defense, it was

incumbent upon the People to establish that defendant had not

acted "solely as the agent of the buyer" (People v Lam Lek Chong,

45 NY2d 64, 73 [1978] [internal quotation marks and citation

omitted], cert denied 439 US 935 [1978]), as such a defense

negates the intent element of both offenses (see People v Watson,

20 NY3d 182, 185-186 [2012]; People v Guthrie, 57 AD3d 1168, 1169

[2008], lv denied 12 NY3d 816 [2009]). The issue of whether a

defendant was the seller of a drug, "or merely a purchaser doing

a favor for a friend, is generally a factual question for the

jury to resolve on the circumstances of the particular case"

(People v Lam Lek Chong, 45 NY2d at 74; see People v Guthrie, 57

AD3d at 1169). In so doing, "the jury . . . may consider such

factors as 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 Ortiz, 76 NY2d 446, 449 [1990]

[internal quotation marks and citation omitted]). "Notably,

profit does not necessarily equate with pecuniary gain" in

determining whether a defendant may stand to benefit from the

underlying sale (People v Robinson, 123 AD3d 1224, 1226 [2014],

lvs denied 25 NY3d 992, 993 [2015]).
-3- 106905 

Here, the CI testified that he had known defendant for

approximately one month and had bought drugs in his home on 5 to

10 occasions. Willis testified that she had known defendant for

approximately one year and had sold drugs out of his home on

about 12 occasions. According to Willis, she would give

defendant crack cocaine in exchange for the use of his house and

"whenever [she] felt that he deserved it." Willis further

explained that those occasions when defendant deserved crack

cocaine were when defendant made sales of the drug. Willis

acknowledged that her customers were "[defendant's] people"

because she was from New York City. Willis further testified

that she kept exclusive control of the crack cocaine at all

times, except for the transactions, due to the fact that

defendant was a user. On the video recording of the first sale,

Willis and the CI wait for defendant to begin the transaction, at

which point the CI gives defendant the money, and defendant

counts it and gives the CI the crack cocaine. On the recording

of the second sale, defendant answers the door, takes the money

from the CI and counts it, whereupon Willis goes to get the crack

cocaine and hands it to defendant, who then gives it to the CI. 

During both sales, defendant asks for "a hit" from the sale, and

when the CI refuses, defendant responds, "You never do" and, "It

don't matter to me."

Although defendant did not receive a monetary share of the

profits from the drug sales, Willis testified that she gave him

crack cocaine in exchange for his assistance with a successful

sale. Further, defendant touted the product and thereby

exhibited "[s]alesman-like behavior" (People v Roche, 45 NY2d 78,

85 [1978], cert denied 439 US 958 [1978]; see People v Robinson,

123 AD3d at 1226). Additionally, the evidence of defendant's

prior conviction of criminal possession of a controlled substance

in the fifth degree showed that defendant previously participated

in a drug transaction in which he had intended to sell drugs (see

People v Monykuc, 97 AD3d 900, 901 [2012]; People v Lauderdale,

243 AD2d 760, 761 [1997], lv denied 91 NY2d 875 [1997]). Viewing

the foregoing evidence in a light most favorable to the People,

and according them every reasonable inference (see People v

Contes, 60 NY2d 620, 621 [1983]; People v Abbott, 107 AD3d 1152,

1155 [2013]), the evidence evinces that defendant played a

greater role than just a buyer's agent in the drug transactions
-4- 106905 

(see People v Guthrie, 57 AD3d at 1169-1170). Further, the jury

was also entitled to credit this evidence that defendant acted as

an agent of Willis, the seller and, deferring to those

credibility determinations, we do not find defendant's

convictions to be against the weight of the evidence (see People

v Robinson, 123 AD3d at 1226-1227).

County Court did not err in allowing testimony that a

person threatened the CI with a gun in defendant's home. 

Defendant's objection that this testimony was outside the scope

of his cross-examination of the CI did not preserve his Molineux

and relevancy arguments for our review (see People v Mattis, 108

AD3d 872, 875 [2013], lvs denied 22 NY3d 957 [2013]; see

generally People v Gray, 86 NY2d 10, 20-21 [1995]). In any

event, no Molineux analysis was required, as defendant was not

involved in the alleged incident wherein the CI was threatened

with a handgun (see People v Arafet, 13 NY3d 460, 465 [2009];

People v Kindred, 100 AD3d 1038, 1039 [2012], lv denied 21 NY3d

913 [2013]). Additionally, the evidence in question was relevant

given previous questioning by defense counsel as to whether the

CI chose to implicate defendant – rather than allegedly more

central drug dealers in the operation – because a controlled buy

at defendant's home would be safer for the CI. Further, any

minimal prejudice to defendant that could arise from the CI's

description of another party's bad act in defendant's home did

not substantially outweigh the probative value of such evidence,

especially given the court's limiting instructions (see People v

Burkett, 101 AD3d 1468, 1471 [2012], lv denied 20 NY3d 1026

[2013]; People v Kindred, 100 AD3d at 1039; see generally People

v Mateo, 2 NY3d 383, 425 [2004], cert denied 542 US 946 [2004]). 

County Court provided the jury with meaningful responses to

their inquiries during deliberations. Defendant contends that

the court failed to meaningfully respond to the jury's inquiries

because it failed to offer a supplemental explanation directly

addressing the relationship between the agency defense and

accessorial liability. However, although the jury asked for

additional instruction regarding the agency defense and then a

read-back of the court's charge regarding accessorial liability,

it did not explicitly seek an explanation from the court as to

the relationship between that defense and that theory of
-5- 106905 

liability. Under the circumstances, County Court's choice to

accurately answer the questions that the jury asked without going

beyond the jury's request was within the court's discretion and

appropriately responsive (see CPL 310.30; People v Almodovar, 62

NY2d 126, 131-132 [1984]; People v Acevedo, 118 AD3d 1103, 1107-

1108 [2014]; People v Williams, 28 AD3d 1005, 1010 [2006], lv

denied 7 NY3d 819 [2006]). 

As the People concede, the two counts of criminal

possession of a controlled substance in the seventh degree are

inclusory concurrent counts of criminal possession of a

controlled substance in the third degree (compare Penal Law

§ 220.16 [1], with Penal Law § 220.03; see People v Bailey, 295

AD2d 632, 635 [2002], lv denied 98 NY2d 766 [2002]). "When

inclusory counts are submitted for consideration, they must be

submitted in the alternative since a conviction on the greater

count is deemed a dismissal of every lesser count" (People v

Bailey, 295 AD2d at 635; see CPL 300.40 [3] [b]; People v Miller,

6 NY3d 295, 300 [2006]; People v Paige, 120 AD2d 808, 811 [1986],

lv denied 68 NY2d 772 [1986]). Therefore, defendant's

misdemeanor convictions of criminal possession of a controlled

substance in the seventh degree must be reversed and the

concurrent, one-year sentences vacated (see People v Bailey, 295

AD2d at 635; People v Florez, 265 AD2d 491, 491-492 [1999], lv

denied 94 NY2d 880 [1999]).

We are not persuaded, however, that defense counsel's

failure to request an alternative charge on these counts

"elevates this case to the level of one of those rare cases where

a single lapse can constitute ineffective assistance of counsel"

(People v Baker, 58 AD3d 1069, 1072 [2009]). Although counsel

erred on a clear-cut issue (see e.g. People v Coleman, 2 AD3d

1045, 1047 [2003]; People v Bailey, 295 AD2d at 635; People v

Florez, 265 AD2d at 491-492; People v Brown, 198 AD2d 291, 292

[1993], lv denied 82 NY2d 891 [1993]; People v Wilson, 162 AD2d

747, 748 [1990], lv denied 76 NY2d 945 [1990]), such an error

must be viewed in the context of the entire representation,

particularly in light of the other charges that defendant faced. 

Most importantly here, counsel's error appears to arise from his

failure to properly consider the misdemeanor charges of criminal

possession of a controlled substance in the seventh degree. 
-6- 106905 

While defendant was certainly entitled to representation on those

charges, defendant had previously been convicted of a felony drug

offense and faced felony charges of criminal sale of a controlled

substance in the third degree and criminal possession of a

controlled substance in the third degree. Given the vastly

disparate potential outcomes related to the felony and

misdemeanor offenses with which defendant was charged,

particularly in light of his prior felony drug conviction

(compare Penal Law § 70.15, with Penal Law § 70.70 [1] [b]; [3]

[b] [i]), and absent any proof that counsel's failure was greater

than that of failing to properly attend to the misdemeanor

charges, we do not find that defendant was deprived of meaningful

representation (compare People v Smith, 30 AD3d 693, 694 [2006]). 

Defendant's remaining contentions as to ineffective assistance of

counsel do not warrant any different result, as he has not

established the absence of "strategic or other legitimate

explanations" for those alleged errors (People v Duffy, 119 AD3d

1231, 1234 [2014], lv denied 24 NY3d 1043 [2014]; see People v

Wimberly, 86 AD3d 806, 808 [2011], lv denied 18 NY3d 863 [2011]). 

Additionally, as defendant fails to even allege that the

potential conflict arising from defense counsel's simultaneous

representation of a third party in an unrelated matter "affected,

or operated on, or [bore] a substantial relation to the conduct

of the defense" in this case, we find his argument in this regard

to be unavailing (People v Sanchez, 21 NY3d 216, 223 [2013]; see

People v Watson, 115 AD3d 687, 689 [2014], lv denied 23 NY3d 1069

[2014]). Finally defendant's sentence is not harsh or excessive

given his criminal history and the fact that the sentence is less

than the maximum authorized (see Penal Law § 70.70 [1] [b]; [3]

[b] [i]; People v Bailey, 295 AD2d at 635).

Defendant's remaining arguments are without merit.

Lahtinen, J.P., Rose and Clark, JJ., concur.
-7- 106905 

ORDERED that the judgment is modified, on the law, by

reversing defendant's convictions of criminal possession of a

controlled substance in the seventh degree under counts 3 and 6

of the indictment; said counts dismissed and the sentences

imposed thereon vacated; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court