AGENCY DEFENSE – New York Appellate Digest

The Third Department determined defendant was entitled to a jury instruction on the agency defense to drug sale and possession charges. Because the request for the instruction was denied, the defendant was granted a new trial. The Third Department explained the relevant facts and law:

“Under 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'” … . “The issue of whether a defendant is criminally responsible as a seller, 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” … . “A trial court must grant a request for an agency charge when, viewed in the light most favorable to the defendant, some evidence, however slight[,] supports the inference that the [defendant] was acting, in effect, as an extension of the buyer” … .

Here, defendant did not initiate the subject transactions. Rather, the CI, who was acquainted with defendant, contacted him to initiate both buys. Before the first buy, defendant said to the CI, with regard to the supplier, “when she meets me and you she’s going to sell us the eight,” which shows that defendant aligned himself with the CI on the buyer’s side of the transaction. At the time of the first buy, defendant and the CI met in defendant’s driveway and talked about defendant’s girlfriend, car and job while they waited for the supplier to arrive with the drugs. When the supplier arrived, the CI asked defendant to get the drugs from her so that he could see them before he paid, and defendant complied. Defendant retrieved nine bags of heroin from the supplier, explaining to the CI that there were “nine here cause [he was] gonna get one too”; again, he was identifying himself on the buyer’s side of the transaction. Defendant’s girlfriend testified that he did not benefit from the sales to the CI. People v Nowlan, 2015 NY Slip Op 05973, 3rd Dept 7-9-15

The Third Department noted that, although the defendant did not preserve his claim his conviction was not supported by legally sufficient evidence, an appellate court will review whether a conviction is supported by proof beyond a reasonable doubt under a “weight of the evidence” review. The Third Department then went on to find the defendant’s agency defense had been disproved by the People beyond a reasonable doubt. The court explained the agency defense:

To the extent that defendant contends that the underlying conviction is not supported by legally sufficient evidence, we note that defendant’s generalized motion to dismiss at the close of the People’s case was insufficient to preserve his present claim, i.e., that the People failed to disprove his agency defense beyond a reasonable doubt … . Additionally, defendant, who testified upon his own behalf, failed to renew this motion at the close of all proof; accordingly, defendant’s challenge to the legal sufficiency of the evidence is not preserved for our review … . “That said, our weight of the evidence [analysis] necessarily involves an evaluation of whether all elements of the charged crime[s] were proven beyond a reasonable doubt at trial” … .

Insofar as is relevant here, “[a] person is guilty of criminal sale of a controlled substance in the third degree when he or she knowingly and unlawfully sells . . . a narcotic drug” (Penal Law § 220.39 [1]). Defendant does not dispute that he sold a narcotic drug, i.e., cocaine, to the undercover deputy on the dates in question, but contends that he acted solely as the deputy’s agent in this regard and, at best, is guilty of criminal possession of a controlled substance … . Under the agency doctrine, a person who procures drugs solely as the agent of a buyer is not guilty of either criminal sale or of possession with the intent to sell … . “[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the [factfinder] to resolve on the circumstances of the particular case” … . Such a determination, in turn, may hinge upon a number of factors, including “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” … . Notably, profit does not necessarily equate with pecuniary gain; indeed, this Court has recognized that a defendant may stand to benefit from the underlying sale when such transaction was undertaken in the hopes of receiving either assistance in getting a job … in exchange for obtaining the requested drugs. People v Robinson, 2014 NY Slip Op 08672, 3rd Dept 12-11-14

Tag Archive for: AGENCY DEFENSE

Defendant Entitled to Jury Instruction on Agency Defense Re: Drug Sale and Possession Charges

Defendant’s “Agency” Defense to a Drug Sale Addressed Under a “Weight of the Evidence” Review (Defense Was Disproved Beyond a Reasonable Doubt)

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