PEOPLE v. FOSKIT, N.Y. App. Div., Judgment, Law, casemine.com

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Smart Summary

Factual and Procedural Background

Defendant Michael J. Foskit was convicted after a jury trial of multiple narcotics offenses, including criminal sale of a controlled substance in the second degree, two counts of criminal sale of a controlled substance in the third degree, and three counts of criminal possession of a controlled substance in the third degree. These charges arose from his sale of cocaine to an undercover police officer on three separate occasions. The appeal comes from the Cattaraugus County Court, with the Appellate Division of the Supreme Court of New York, Fourth Department, reviewing the case.

Legal Issues Presented

Whether the defendant was deprived of effective assistance of counsel.
Whether prosecutorial misconduct during summation deprived the defendant of a fair trial.
Whether the People failed to disprove beyond a reasonable doubt that the defendant was acting solely as an agent of the purchaser.
Whether the trial court erred in ordering consecutive sentences for possession counts arising from the same criminal acts as the sale counts.

Arguments of the Parties

Appellant's Arguments

The defendant claimed he was deprived of effective assistance of counsel.
The defendant argued prosecutorial misconduct during summation deprived him of a fair trial.
The defendant contended that he was acting solely as an agent of the purchaser and thus the People failed to disprove this beyond a reasonable doubt.
The defendant challenged the imposition of consecutive sentences for possession counts that arose from the same criminal acts as the sale counts.

Respondent's Arguments

The People maintained that the defendant received meaningful representation and that the claim of ineffective assistance lacked merit.
The People argued that the prosecutorial misconduct claim was unpreserved and declined for review in the interest of justice.
The People asserted the evidence was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt and disproved his agency defense.
The People supported concurrent sentencing for possession counts but opposed dismissal of noninclusory possession counts.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v. Satterfield, 66 N.Y.2d 796, 798-799	Standard for effective assistance of counsel	Used to conclude defendant's attorney provided meaningful representation.
People v. Baldi, 54 N.Y.2d 137, 146-147	Effective assistance of counsel framework	Supported the finding that counsel’s performance was adequate.
People v. Montalvo, 125 A.D.2d 338	Review of unpreserved prosecutorial misconduct claims in the interest of justice	Grounds for declining to review prosecutorial misconduct claim.
People v. Argibay, 45 N.Y.2d 45, 53-54; cert. denied sub nom. Hahn-DiGuiseppe v. New York, 439 U.S. 930	Burden to disprove agency defense beyond reasonable doubt	Confirmed that the jury resolved factual issue regarding defendant’s role.
People v. Torres, 150 A.D.2d 816; lv. denied 74 N.Y.2d 820	Agency defense and burden of proof	Supported rejection of defendant’s agency defense based on jury credibility findings.
People v. Scott, 134 A.D.2d 379, 380; lv. denied 70 N.Y.2d 937	Factual question for jury on defendant’s role in narcotics transactions	Emphasized jury’s role in assessing credibility and determining guilt.
People v. Malizia, 62 N.Y.2d 755, 757; cert. denied 469 U.S. 932	Credibility determinations as jury function	Supported presumption that jury did not credit defendant’s testimony.
People v. Contes, 60 N.Y.2d 620	Legal sufficiency of evidence viewed in light most favorable to the People	Confirmed evidence was sufficient to establish guilt beyond a reasonable doubt.

Court's Reasoning and Analysis

The court first addressed the claim of ineffective assistance of counsel, concluding that the defendant’s attorney provided meaningful representation based on the record, law, and circumstances at the time of representation, citing established precedents. The prosecutorial misconduct claim was found unpreserved due to lack of objection at trial and was declined review in the interest of justice.

Regarding the defendant’s agency defense, the court noted that the issue was factual and for the jury to resolve, pointing out that the jury’s verdict implied rejection of the defendant’s testimony. The court emphasized the principle that credibility determinations lie with the trier of fact. Viewing the evidence in the light most favorable to the People, the court found the evidence legally sufficient to establish guilt beyond a reasonable doubt.

On sentencing, the court identified error in the trial court’s imposition of consecutive sentences for possession counts that arose from the same criminal acts as the sale counts. The court ordered those possession sentences to run concurrently but declined to dismiss the concurrent noninclusory possession counts, exercising discretion under CPL 300.40(a).

Finally, the court reviewed other contentions and found them either unpreserved or lacking merit.

Holding and Implications

The court modified the judgment on the law by ordering that the sentences for the three counts of criminal possession run concurrently with the sentences for the criminal sale counts, rather than consecutively. As modified, the judgment was affirmed.

The direct effect of this decision is to reduce the total sentencing exposure of the defendant by eliminating the consecutive nature of possession sentences. No new legal precedent was established, and the court declined to dismiss any counts. The ruling reinforces established principles regarding effective assistance of counsel, prosecutorial misconduct preservation requirements, agency defenses in narcotics cases, and sentencing discretion.

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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MICHAEL J. FOSKIT, Appellant. (Appeal No. 1.)

Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant was convicted, after a jury trial, of criminal sale of a controlled substance in the second degree, two counts of criminal sale of a controlled substance in the third degree, and three counts of criminal possession of a controlled substance in the third degree in connection with his sale of cocaine to an undercover police officer on three separate occasions.

Defendant's claim that he was deprived of effective assistance of counsel lacks merit. Upon our review of the record, we conclude that the evidence, the law and the circumstances of this case, viewed together and as of the time of representation, reveal that defendant's attorney provided meaningful representation (see, People v. Satterfield, 66 N.Y.2d 796, 798-799; People v. Baldi, 54 N.Y.2d 137, 146-147).

Defendant failed to preserve for our review his claim that he was deprived of a fair trial by prosecutorial misconduct during summation because he did not object to the alleged improper remarks (see, CPL 470.05). We decline to review this issue in the interest of justice (cf., People v. Montalvo, 125 A.D.2d 338).

We reject defendant's contention that the People failed to disprove beyond a reasonable doubt that he was acting solely as an agent of the purchaser (see, People v. Argibay, 45 N.Y.2d 45, 53-54, cert. denied sub nom. Hahn-DiGuiseppe v. New York, 439 U.S. 930; People v. Torres, 150 A.D.2d 816, lv. denied 74 N.Y.2d 820; People v. Scott, 134 A.D.2d 379, 380, lv. denied 70 N.Y.2d 937). Whether defendant was a seller of narcotics or merely a purchaser assisting a friend presented a factual issue for the jury to resolve under the circumstances of this case (see, People v. Scott, supra, at 380). Defendant's agency defense rested on the credibility of defendant's testimony that he made no profit from the transactions and that he was only doing a favor for an undercover police officer who purchased the cocaine. Because the jury found defendant guilty, it can reasonably be assumed that defendant's testimony was not credited and "credibility is a matter to be determined by the trier of the facts" (People v. Malizia, 62 N.Y.2d 755, 757, cert. denied 469 U.S. 932). Moreover, in our view, the evidence, viewed in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), was legally sufficient to establish defendant's guilt beyond a reasonable doubt.

The trial court erred in ordering that the sentences for the three counts of criminal possession of a controlled substance in the third degree should run consecutive to the sentences for second and third degree criminal sale of a controlled substance because the possession counts arose out of the same criminal acts as the sale counts. Thus, we make those sentences run concurrently. We decline to exercise our discretion to dismiss the concurrent noninclusory possession counts (see, CPL 300.40 [a]).

We have reviewed defendant's remaining contentions and find them to be either unpreserved for our review or, where preserved, lacking in merit.

PEOPLE v. FOSKIT