You are here: / / PEOPLE SHOULD HAVE INSTRUCTED THE GRAND JURY ON THE AGENCY DEFENSE IN THIS...

PEOPLE SHOULD HAVE INSTRUCTED THE GRAND JURY ON THE AGENCY DEFENSE IN THIS CRIMINAL SALE OF MARIJUANA CASE, INDICTMENT PROPERLY DISMISSED.

The Third Department determined County Court properly reinspected the grand jury minutes pursuant to a second motion by defense counsel and properly dismissed the indictment because the People failed to instruct the grand jury on an applicable defense. Because the first motion to inspect argued the evidence before the grand jury was insufficient, the law of the case doctrine did not prohibit the second motion, which argued the proceedings were defective. The defendant was charged with criminal sale of marijuana.  However, the facts supported the theory the defendant was acting as an agent for the buyer:

 

… [W]hile there is no requirement that the grand jury “be charged with every potential defense suggested by the evidence” … , the People “must charge . . . those defenses that the evidence will reasonably support” … . 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” … . * * *

 

…. [T]he 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) … . People v Gallo, 2016 NY Slip Op 00064, 3rd Dept 1-7-16

 

 

 

 

 

 

CRIMINAL LAW (GRAND JURY SHOULD HAVE BEEN INSTRUCTED ON AGENCY DEFENSE)/GRAND JURIES (PEOPLE SHOULD HAVE INSTRUCTED JURY ON AGENCY DEFENSE)/AGENCY DEFENSE (GRAND JURY SHOULD HAVE BEEN INSTRUCTED ON AGENCY DEFENSE)/MARIJUANA, CRIMINAL SALE (GRAND JURY SHOULD HAVE BEEN INSTRUCTED ON AGENCY DEFENSE)

You might also like
EXPERIENCED SKIER ASSUMED THE RISK OF STRIKING A DEPRESSION IN THE SKI TRAIL.
CAP ON STATE MEDICAID FUNDS USED FOR ADMINISTRATIVE COSTS AND EXECUTIVE PAY PROPERLY PROMULGATED BY DEPARTMENT OF HEALTH, CAP ON EXECUTIVE PAY FROM ALL SOURCES EXCEEDED DOH’S REGULATORY AUTHORITY.
THE CONSTRUCTION OF 27 MILES OF SNOWMOBILE TRAILS IN THE ADIRONDACK PARK WOULD VIOLATE THE NEW YORK CONSTITUTION’S PROHIBITION OF THE DESTRUCTION OF TIMBER (THIRD DEPT).
THE REQUIREMENT IN THE LONG-TERM SOLITARY CONFINEMENT ACT (HALT ACT) THAT A HEARING BE HELD WITHIN FIVE DAYS OF PLACING AN INMATE IN A SEGREGATED HOUSING UNIT (SHU) IS “DIRECTORY,” NOT MANDATORY; THEREFORE ANY ISSUE RELATED TO A DELAY IN HOLDING THE HEARING MUST BE PRESERVED FOR REVIEW AND THE INMATE MUST DEMONSTRATE PREJUDICE CAUSED BY THE DELAY (THIRD DEPT).
Motion to Withdraw Guilty Plea Should Not Have Been Denied Without a Hearing
ALTHOUGH THE VICTIM’S FACIAL SCARS WERE SHOWN TO THE JURY NO DESCRIPTION OF THE SCARS APPEARS IN THE TRIAL RECORD AND NO PHOTOGRAPH OF THE SCARS WAS INTRODUCED; THEREFORE THE SERIOUS DISFIGUREMENT ELEMENT OF ASSAULT FIRST WAS NOT DEMONSTRATED AND THE ASSAULT FIRST CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; CONVICTION REDUCED TO ATTEMPTED ASSAULT FIRST (THIRD DEPT).
SPECIAL FUND LIABLE FOR CLAIM MADE AFTER THE 2014 CUTOFF FOR NEWLY REOPENED CLAIMS, DECEDENT’S CLAIM WAS TRANSFERRED TO THE SPECIAL FUND IN 2002 AND HIS DEATH WAS CAUSALLY RELATED TO THE 2002 CLAIM.
Courts Do Not Defer to an Agency’s Construction of a Statute—Workers’ Compensation Board’s Determination, Based Upon the Construction of Workers’ Compensation Law 25, Reversed

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALTHOUGH VACATUR OF A DEFAULT JUDGMENT WAS NOT AVAILABLE UNDER CPLR 5015, VACATUR... COCAINE-POSSESSION OFFENSES CHARGED IN THE SUPERIOR COURT INFORMATION (SCI)...