author: Cooke, J.

text:
    The People of the State of New York, Respondent, v John Discala, Appellant.
    Argued June 6, 1978;
    decided July 11, 1978

      POINTS OF COUNSEL

      Roger H. Briton for appellant.
    I. The courts below erred in refusing a charge to the jury of the lesser included offense of attempted coercion in the second degree. (People v Mussenden, 308 NY 558; People v Asan, 22 NY2d 526; People v Malave, 21 NY2d 26; People v Henderson, 41 NY2d 233; People v Shuman, 37 NY2d 302; People v Moran, 246 NY 100; People v Strong, 45 AD2d 18, 37 NY2d 568; People v Jenkins, 41 NY2d 307; People v Valle, 15 NY2d 682.) II. This court should modify and reduce the sentence in the interests of justice. (People v Gingold, 51 AD2d 708.)

      Mario Merola, District Attorney (Steven J. Greenblatt and Alan D. Marrus of counsel), for respondent.
    The trial court correctly refused to charge attempted coercion in the second degree since no reasonable view of the evidence warranted that charge. (People v Eboli, 34 NY2d 281; People v Steele, 26 NY2d 526; People v Henderson, 41 NY2d 233; People v Asan,
      22 NY2d 526; People v Bracey, 41 NY2d 296; People v Rosencrants, 89 Misc 2d 721; People v Mussenden, 308 NY 558.)
   OPINION OF THE COURT

Cooke, J.

In a one-count indictment defendant was charged with the crime of attempted coercion in the first degree, for which he was convicted following trial. On this appeal, he contends that the trial court erred in refusing to charge the lesser included offense of attempted coercion in the second degree. In light of the evidence, we find this argument to be without merit, as did the majority in the Appellate Division, and we therefore affirm.

Underlying the attempted coercion was the theft of a number of employee payroll checks by one Garrido, an administrator of Bronx Children’s Hospital. Implicated in the stealing was defendant’s uncle, Joseph Sasso, a maintenance man at the hospital. The evidence at trial showed that while the indictments for these crimes were pending, defendant placed a telephone call to Dr. E. Richard Feinberg, director of the hospital. In the conversation that ensued, defendant urged Feinberg to use his influence to have the indictments dismissed. Upon learning that his request would not be honored, defendant threatened Feinberg, telling him that he could kill him or have him killed.

Based on these threats, defendant was charged with attempted coercion in the first degree in an indictment alleging in pertinent part that: "said defendant, on or about the 21st day of April, 1973 did attempt to compel and induce Dr. E. Richard Feinberg, Director, Bronx Childrens Hospital, Bronx County, to engage in conduct which the latter had a legal right to abstain from engaging in, or to abstain from engaging in conduct in which Dr. Feinberg had a legal right to engage, by instilling in the said Dr. Feinberg that he, the defendant, would cause physical injury to the said Dr. Feinberg. Specifically, the said defendant attempted to compel and induce the said Dr. Feinberg to use his influence regarding pending Bronx County indictments.”

The crime of coercion may be committed by compelling the victim to engage in conduct from which he had a legal right to abstain by instilling in him a fear that if the demand is not complied with a person will be physically injured or property damaged. When the crime is committed in this fashion, it is an anomaly of our statutes that the language used to define the felony of coercion in the first degree (Penal Law, § 135.65) is virtually identical to that employed to describe the misdemeanor of coercion in the second degree (Penal Law, § 135.60). However, this is not as surprising or troublesome as it may at first appear since, in another context involving a constitutional challenge to the felony statute, this court elucidated the purpose behind each of the two degrees of the crime (People v Eboli, 34 NY2d 281). Guided by commentaries and after examining other provisions of law, this court explained that: "under the related coercion statutes, it is likely that despite the verbal duplication in the lower degree, the drafters and the Legislature intended that the general rule be that coercion in the first degree, the felony, be charged whenever the method of coercion was to instill a fear of injury to a person or damage to property. Making the misdemeanor offense 'all inclusive’ is apparently a 'safety-valve’ feature included in the event an unusual factual situation should develop where the method of coercion is literally by threat of personal or property injury, but for some reason it lacks the heinous quality the Legislature associated with such threats” (34 NY2d, at p 287).

Since the statutory definition for the felony crime sets forth as one of its elements that "[a] person is guilty of coercion in the first degree when he commits the crime of coercion in the second degree” (Penal Law, § 135.65), in this case it was "impossible” to commit the first degree offense "without concomitantly committing, by the same conduct” the second degree crime (see CPL 1.20, subd 37). Therefore, it follows that the misdemeanor of coercion is a lesser included offense of felony coercion and should be charged, if requested, "if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater” (CPL 300.50, subd 1; see, e.g., People v Johnson, 39 NY2d 364, 367).

In deciding whether to submit a lesser included offense to the jury, it has been emphasized that "[t]he court’s appraisal of the persuasiveness of the evidence indicating guilt of the higher count is irrelevant” (People v Henderson, 41 NY2d 233, 236). Rather, the focus is on whether there is some reasonable basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one (id.). In other words, it is not for the Trial Judge to speculate as to what will be the ultimate finding of the jury; the court simply determines if there is a reasonable view of the facts which would support a conviction of the lesser crime but not the greater. The evidence must be viewed in the light most favorable to the defendant (People v Shuman, 37 NY2d 302, 304; People v Battle, 22 NY2d 323), and a court must recognize that the jury may decide to accept only part of the prosecution’s proof (People v Asan, 22 NY2d 526, 530). The net effect of submitting the lesser charge may be that the jury will simply extend mercy, but this is acknowledged to be an "inevitable consequence of the jury system” (People v Mussenden, 308 NY 558, 562; see People v Malave, 21 NY2d 26, 29; People v Clemente, 285 App Div 258, 264, affd 309 NY 890).

The coercion statutes present a peculiar problem with respect to lesser included offenses. At first blush, because of the identity of language, it may be logically compelling to suppose that in most if not all cases it is for the jury to assess whether the threat lacked the requisite heinousness needed to convict of the greater crime. However despite the broad latitude given the jury, the court is not required to submit the lesser degree "in every case” (People v Mussenden, 308 NY 558, 562, supra; see People v Shuman, 37 NY2d 302, supra). And, as to these particular offenses, although People v Eboli (34 NY2d 281, supra) involved principally the issue of whether due process or equal protection guarantees are violated when the , People have the discretion to decide whether prosecution” 'for the lower degree is warranted, the analysis in that decision is highly relevant here.

In Eboli, this court construed the misdemeanor as a " 'safety-valve’ feature” and suggested that it was reserved for an "unusual factual situation” (34 NY2d, at p 287). The rationale for this approach is that it would indeed be an exceptional case where the method of coercion is by threat of personal or property injury while at the same time the "heinous quality” is lacking (id.). While a vivid imagination may certainly conjure up a situation where threatened physical injury is not truly fearsome, this would be a rare event indeed.

Drawing from the Eboli analysis, with respect to the issue at hand, it is observed that the initial determination— whether to prosecute for the greater or lesser crime — is made by the People. However, the prosecutor may have decided to seek an indictment for a particular crime based on facts which materially differ from the proof ultimately developed at trial. Hence, before the case goes to the jury, the trial court must determine whether submission of the lesser included offense is warranted based on a reasonable view of the evidence. At this juncture, just as at the preindictment stage, it will be a rare and unusual event for the prosecution to have established coercion by threat of personal physical injury without showing the heinousness ordinarily associated with this manner of commission of the crime. Nevertheless, recognizing that this will be the exception, if it remains a reasonable possibility based on the evidence presented, the trial court should submit the lesser included offense to the jury.

Tested in light of these indicia, we agree that there was no error here in refusing to submit to the jury the lesser included offense of attempted second degree coercion. That charge should be reserved for the "unusual factual situation”, not presented by the evidence here, where the method of coercion is by threat of personal physical injury which for some reason lacks a heinous quality. In this instance, the malevolent nature of the threat is at once obvious in defendant’s proposal to kill or have the victim killed. A lack of odiousness is not remotely inferrable from Dr. Feinberg’s failure to call the local police, since defendant warned against calling law enforcement authorities and, in any event, Feinberg immediately called a number given him by the Bronx District Attorney’s Office. The victim’s failure to agree outwardly to comply with the demands made would also not indicate mitigation on defendant’s part. Furthermore, that the caller offered an invitation to meet face to face and have supper does not show that the death threat was not heinous in nature and would hardly suggest that a leisurely repast was contemplated. Certainly, on this proof charging the lesser included offense would force the jury "to resort to sheer speculation” (cf. People v Bracey, 41 NY2d 296, 302, mot for rearg den 41 NY2d 1010), since, fundamentally, the jury should not be permitted to choose between the crime charged and some lesser crime where the evidence essential to support a verdict of guilt of the lesser necessarily proves guilt of the greater crime as well (cf. People v Richette, 33 NY2d 42, 47; see, also, People v Alamo, 34 NY2d 453, 457; People v Reisman, 29 NY2d 278, 287). In light of the uncontroverted evidence, the requested charge was manifestly unwarranted and properly denied.

Finally, contrary to defendant’s assertion, it is the Appellate Division, and not this court, which is authorized to reduce a sentence in the exercise of its discretion and in the interest of justice (CPL 470.15, subd 6, par [b]; 470.20, subd 6). Since the sentence was not unlawful and was within legal limits, defendant may not obtain such relief here (People v Gittelson, 18 NY2d 427, 430; People v Speiser, 277 NY 342, 344).

Accordingly, for the reasons stated, the order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Anthony Argibay, Appellant. The People of the State of New York, Respondent, v Anthony Di Guiseppe, Appellant.
    Argued March 29, 1978;
    decided June 15, 1978

      POINTS OF COUNSEL

      Irving Cohen for Anthony Argibay, appellant.
    I. The court should have granted a mistrial or, at minimum, discharged the juror upon learning that a juror told defense counsel "I hate you”. (People v Jelke, 308 NY 56; People v Cocco, 305 NY 282; United States v Flynn, 216 F2d 354; Mark v Colgate Univ., 53 AD2d 884; People v Durling, 303 NY 382; People v Winslow, 51 AD2d 824; People v Phillips, 87 Misc 2d 613, 52 AD2d 758.) II. As applied to this case, the mandatory sentence which was imposed six years to life was unconstitutional. (People v Broadie, 37 NY2d 100; Trop v Dulles, 356 US 86; People v Jones, 39 NY2d 694.) III. The effect of prosecutorial error and misconduct was so great so as to deny appellant a fair trial. (People v Ashwal, 39 NY2d 105; People v Griffin, 29 NY2d 91; People v Savvides, 1 NY2d 554; People v Garcia, 40 AD2d 983; People v Matthews, 33 AD2d 679.) IV. The court’s charge was erroneous and prejudicial in that it it failed to charge agency and facilitation as to Argibay and in charging facilitation as to Di Guiseppe, codefendant, it indicated that they must first find Argibay guilty of the sale. (People v Ivory, 27 AD2d 844; People v Volante, 75 Misc 2d 400; People v Lindsey, 16 AD2d 805, 12 NY2d 958; People v Fortes, 24 AD2d 428; People v Silverman, 23 AD2d 947; People v Jamison, 29 AD2d 973; People v Valentine, 55 AD2d 585; People v Paturso, 34 AD2d 832; People v Sanders, 45 AD2d 768; People v Chase, 13 Misc 2d 300.) V. The granting of the motion for consolidation, especially when considered with the court’s incorrect charges on facilitation and agency, was an abuse of discretion, and not authorized by any section of the procedural law. (People v Welch, 16 AD2d 554; People v Hannon, 50 Misc 2d 297; People v Pilon, 30 AD2d 365; People v Krugman, 44 Misc 2d 48; Gideon v Wainwright, 372 US 335.) VI. It was error to deny a motion to suppress the in-court identification of appellant. (United States v Wade, 388 US 218; Gilbert v California, 388 US 263; Simmons v United States, 390 US 377; People v Ballott, 20 NY2d 600; People v Caserta, 19 NY2d 18; People v Branch, 34 AD2d 541; People v Baker, 23 NY2d 307; People v Utley, 77 Misc 2d 86; People v Ghee, 42 AD2d 860.)

      Eugene G. Lamb for Anthony Di Guiseppe, appellant.
    I. The statutes imposing mandatory sentences are unconstitutional and as to appellant Hahn-Di Guiseppe are unconstitutional in application. (Furman v Georgia, 408 US 238; People v Davis, 33 NY2d 221; Trop v Dulles, 356 US 86; Weems v United States, 217 US 349; People v Oliver, 1 NY2d 152; Robinson v California, 370 US 660; People v Jones, 39 NY2d 694.) II. The misconduct of a juror was prejudicial; the trial court erred in failing to act promptly to protect the rights of appellant; defendant did not waive his rights thereto. (People v Jelke, 284 App Div 211, 308 NY 56; People v Whitmore, 45 Misc 2d 506, 27 AD2d 939; People v Durling, 303 NY 382; People v Colascione, 22 NY2d 65; People v Phillips, 85 Misc 2d 613, 52 AD2d 758.) III. The indictment should have been dismissed against appellant, Di Guiseppe, at the end of the People’s case: it was error to submit the case to the jury and the trial court erred in its charge on the issue of agency. (People v Lindsey,
      16 AD2d 805, 12 NY2d 958; People v Silverman, 23 AD2d 947; People v Fortes, 24 AD2d 428, 17 NY2d 583; People v Ivory, 27 AD2d 844; People v Miller, 24 AD2d 1023; People v Branch, 13 AD2d 714.) IV. The court’s charge as to agency was error and prejudicial to appellant, Anthony Hahn-Di Guiseppe. (People v Valentine, 55 AD2d 585; People v Bostick, 51 AD2d 749.) V. It was an abuse of discretion for the trial court to grant People’s motion for consolidation and deprived defendant, Anthony Hahn-Di Guiseppe, of a fair trial. (Carlos v Motor Vehicle Acc. Ind. Corp., 22 AD2d 866; James v Powell, 32 AD2d 517; Parker v Rogerson, 33 AD2d 284; George W. Collins, Inc. v Olsker-McLain Inds., 22 AD2d 485; People v Krugman, 44 Misc 2d 48; People v Pilon, 30 AD2d 365; People v Sher, 69 Misc 2d 847; People v Burrelle, 21 NY2d 265; People v Cavanaugh, 48 AD2d 949.) VI. Considering the totality of all the circumstances appellant, Anthony Hahn-Di Guiseppe, was deprived of his constitutionally protected right to a fair trial. (People v Jelke, 284 App Div 211, 308 NY 56; People v Whitmore, 45 Misc 2d 506, 27 AD2d 939; People v Colascione, 22 NY2d 65; People v Cocco, 305 NY 282.) VII. There was misconduct of the prosecutor throughout the trial.

      Robert M. Morgenthau, District Attorney (Henry Steinglass, Robert M. Pitler and David I. Pincus of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. The question of whether Di Guiseppe was acting solely as the agent of the buyer was properly submitted to the jury. (People v Hingerton, 27 AD2d 754, 26 NY2d 790.) III. The trial court properly rejected Argibay’s request to discharge a juror. (Mark v Colgate Univ., 53 AD2d 884; People v Cocco, 305 NY 282; People v Sher, 24 NY2d 454, 396 US 837; Matter of Oliver v Justices of N. Y. Supreme Ct. of N. Y. County, 36 NY2d 53.) IV. The trial court properly refused to charge agency and criminal facilitation as to Argibay. (People v Jamison, 29 AD2d 973; United States v MacDonald, 455 F2d 1259, 406 US 962; People v Williams, 49 AD2d 513.) V. Argibay’s motion to suppress potential identification testimony was correctly denied. (People v Logan, 25 NY2d 184; People v Morales, 37 NY2d 262; People v Joyiens, 39 NY2d 197; People v Glen, 30 NY2d 252.) VI. The Trial Judge properly exercised his discretion in granting the People’s motion to consolidate the two indictments. (People v Bornholdt, 33 NY2d 75; Victory v New York, 416 US 905; Poland v B. N. Cab Corp., 51 AD2d 692.) VII. The trial court properly instructed the jury on the crime of criminal facilitation. (People v Wofford, 52 AD2d 779; People v Kief, 126 NY 661; People ex rel. Guido v Calkins, 9 NY2d 77; People v Munroe, 190 NY 435.) VIII. The prosecutor’s trial conduct was proper. (People v Castillo, 16 AD2d 235, 12 NY2d 732.) IX. The sentences imposed were constitutional. (People v Broadie, 37 NY2d 100.)
   OPINION OF THE COURT

Per Curiam.

Defendants Anthony Argibay and Anthony Di Guiseppe appeal from affirmances by the Appellate Division, one Justice dissenting, of their convictions after jury trial of criminal sale of a controlled substance in the second degree (Penal Law, § 220.41).

The principal issue on Argibay’s appeal is whether, in a case involving sale of narcotics, the jury must be charged on agency when the evidence demonstrates that defendant’s involvement in the transaction was, at least, that of a middleman or broker. As to Di Guiseppe, who received an agency charge, the issue tendered is whether the charge was correct in precluding the agency defense where defendant received any financial gain in the transaction; that issue is obviated by a failure to object to the charge at trial. Another issue, common to both appeals, is whether the trial court erred in failing to declare a mistrial after learning that a juror had, during the trial, said to counsel for Argibay "I hate you”. The court had offered to conduct a voir dire examination of the juror, an offer declined by defense counsel.

The orders of the Appellate Division should be affirmed. No charge on agency is required, or appropriate, when the testimony essential to the verdict in favor of the People leads to the inevitable conclusion that defendant was not merely accommodating the buyer, but was acting, if not as a principal seller, then at the very least as a middleman or a broker for his supplier. Hence, the court properly declined an agency charge as to Argibay. As to Di Guiseppe, the agency charge was erroneous, but the error was not preserved by objection at trial. While failure to take action on defense counsel’s report of juror misconduct would have been error, defendants were not entitled, automatically, to a mistrial. The trial court acted appropriately in offering to conduct a voir dire examination, and defense counsel’s refusal of the offer worked a waiver of any error.

Several other issues, raised and briefed by the defendants, have been considered and rejected.

The drug transaction in this case was initiated, according to police testimony, by a telephone call from Joseph Di Guiseppe, brother of appellant Anthony Di Guiseppe, to undercover Officer Sievers, on June 6, 1975. Preparations were made for a purchase of one ounce of cocaine that day. Sievers and undercover Officer Siebert were introduced to Anthony Di Guiseppe, and the officers were taken to the home of the "connection”. The transaction was aborted, however, with the officers waiting in their automobile in front of the connection’s home until 1:00 a.m., never having met the connection or entered his apartment. Joseph Di Guiseppe had driven away from the scene, and Anthony Di Guiseppe had not emerged from the connection’s building by the time the agents decided to leave.

After two telephone calls exploring the "foul up” of June 6, Joseph Di Guiseppe agreed to call Sievers when a new transaction had been arranged. On June 13, a week after the aborted "buy”, Joseph Di Guiseppe called Officer Siebert and made new arrangements. Siebert and Sievers again met the Di Guiseppe brothers, and were taken to the same location. After ascertaining that Sievers had money for the cocaine, defendant Anthony Di Guiseppe accompanied him to defendant Argibay’s apartment, where the transaction was to take place. Argibay’s supplier was to deliver cocaine soon and Sievers and defendant Di Guiseppe were instructed to wait in the kitchen when he arrived, so they would not see him. The delivery was made, the cocaine was tested and weighed, and after a slight dispute over the weight, Sievers paid Argibay $1,700 and received just less than an ounce of cocaine. Sievers gave Di Guiseppe a grain "off the top”, and then saw money change hands from Argibay to Di Guiseppe. When Sievers asked how he could reach Argibay to purchase more cocaine, he was instructed to deal through Anthony Di Guiseppe.

A week and a half later, Sievers called Anthony Di Guiseppe about an additional purchase, but was told that Argibay was not then interested in selling any drugs. Di Guiseppe offered to get back to Sievers about obtaining cocaine from another source. Time passed without any return call from Di Guiseppe, and Sievers went to Argibay directly to try to make a purchase. Argibay indicated that he was not making enough money to warrant his continued involvement in the narcotics trade, and declined to sell any more cocaine.

Argibay and the Di Guiseppe brothers were arrested and arraigned in September 1975. Joseph Di Guiseppe pleaded guilty and was accorded youthful offender treatment. Argibay and Anthony Di Guiseppe went to trial, at which the police testimony detailed the narcotics transaction. Argibay, an architecture student at Pratt Institute, called two. character witnesses. Di Guiseppe called no witnesses. Neither defendant testified.

On the last day of trial before summations and the charge to the jury, Argibay’s trial counsel informed the court that, as the jurors had filed out of the jury room at the end of the day, one of the jurors had stopped in front of him and said "I hate you.” Counsel for Di Guiseppe reported that he, too, had heard the rexriark. A motion was made for a mistrial or, in the alternative, for replacement of the juror by an alternate. When the motion was denied, an application was made for the court to examine the juror the next morning as to any bias that "would prevent her from rendering a fair verdict”. Although the application had been initially denied, the court had reconsidered by the next morning, and offered to question the juror. Counsel for Argibay, however, had changed his mind, and requested the court not to conduct an examination of the juror, even after the court had indicated the juror would not be disqualified unless she was first questioned. Hence, no further inquiry was conducted.

The jury was charged that if they found defendant Di Guiseppe to be solely an agent of the buyer, they should find him not guilty of the sale of the drugs. In explaining the agency charge, however, the court said "If he received or is promised any advantage, benefit or compensation for his part, he is not an agent.” No objection was taken to this charge. As to defendant Argibay, despite a request, no agency charge was given. Each defendant was convicted and sentenced to a term of from six years to life imprisonment. The Appellate Division affirmed, one Justice dissenting.

Extended discussion of the juror misconduct issue is not warranted. Had the trial court refused to investigate the juror’s remark to defense counsel, reversal might be mandated. But investigation was offered and it was defense counsel, after requesting a voir dire examination only the night before, who declined the next morning to have the examination conducted. The trial court could not be faulted for refusing to disqualify the disputed juror without conducting any inquiry into the meaning of and the circumstances surrounding the objectionable statement. Hence, when inquiry was declined, defendants waived any rights they might otherwise have had on appeal.

The agency charge submitted to the jury as to Di Guiseppe was arguably error. Since no objection was taken to the charge, however, the error is not preserved.

Preserved for review, and meriting more complete treatment, is the contention that defendant Argibay was entitled to a charge on agency. To sustain such an argument, there must be some view of the evidence on which Argibay may be said to have acted only as an agent for the buyer.

It is argued, with superficial plausibility, that since Argibay was not the ultimate supplier, he might have been acting as an agent of the buyers, the undercover officers. Indeed, Argibay’s supplier arrived with a delivery while Sievers was in Argibay’s apartment. The mere fact that Argibay was a middleman or a broker, however, is not enough to warrant a charge on agency. Were there such a rule, even the largest of drug sellers would be entitled to an agency charge, since so many narcotics originate, ultimately, abroad.

All agents aré, concededly, middlemen of sorts. But the converse is not true. A middleman who. acts as a broker between a seller and buyer, aiming to satisfy both, but largely for his own benefit, cannot properly be termed an agent of either. Such a middleman is a trader in narcotics, a merchant. He may not be concerned with the particular needs of an individual drug purchaser except to the extent that satisfying those needs affects his illicit business. To call him an agent strains beyond recognition the agency concept.

In the commercial law field, of course, an agent owes a high duty of loyalty to his principal (see Restatement, Agency 2d, §§ 387-398). While it would be ludicrous to apply commercial law definitions to the criminal law, the familiar principles are not without limited relevance. The typical intermediary in a narcotics transaction, perhaps especially because of the implications of the transaction’s illegality, is not likely to have any strong bond of loyalty to his buyer.

To be an agent of his buyer, a narcotics merchant must be a mere extension of the buyer. He may act to procure what the buyer wants because the buyer has asked him to do so, but not out of any independent desire or inclination to promote the transaction. The applicable standards are developed in greater detail elsewhere (People v Lam Lek Chong, 45 NY2d 64, 72-76; this case offers, nevertheless, a useful illustration.

None of the testimony at trial supports the inference that defendant Argibay was merely an agent of the police officers. Until the narcotics were actually delivered and paid for, the officers had never met their purported "agent”. Argibay, in fact, had used the Di Guiseppes as intermediaries to shield him from all contact with his "principal” until the transaction was to be completed. When "agent” and "principal” did finally meet, the "agent” would not allow the police officer, his "principal”, to see the supplier, and a dispute over quantity arose between Argibay and the officer. Finally, on a later occasion, Argibay admitted to Sievers that he was leaving the narcotics trade because it had ceased to be financially profitable.

This testimony, uncontroverted as it is by proof or cross-examination, is not reconcilable with the theory that Argibay was acting only as an extension of his buyer. The argument that the undercover officer might have lied about Argibay’s involvement, and that Argibay _ may have done nothing more than offer his apartment to facilitate the deal between undercover Officer Sievers and the ultimate supplier, is not supported by any evidence. It is not even credible speculation or hypothesis. If the testimony of Officer Sievers is to be believed at all, and the finder of fact, the jury, evidently believed it, Argibay was a seller of narcotics, and by no inferential process an agent. Hence, no charge to the jury on agency was necessary or appropriate. For identical reasons, no charge on facilitation was required.

Anthony Di Guiseppe presents a useful counterpoint. Di Guiseppe became involved in the transaction when his brother received a telephone call from an undercover officer. The undercover officers were in frequent contact with Di Guiseppe, who eventually brought them to Argibay’s apartment. Yet the undercover officer paid Argibay for the drugs directly, rather than dealing through Di Guiseppe, although Di Guiseppe’s involvement did include compensation by, at least, a small quantity of cocaine. Finally, Di Guiseppe was apparently willing to act as a procurer of drugs from sources other than Argibay, indicating, perhaps, more loyalty to the prospective buyer, his supposed "principal”, than to any single supplier. While even this testimony does not establish that Di Guiseppe was an agent, it does not appear to be inconsistent with agency, and a jury charge on agency was probably indicated. Only the failure to object to the erroneous charge prevents review in this court.

In sum, an agency charge is not required simply because it appears that a seller of narcotics did not personally grow, import, or manufacture the illicit substance. If it were, an agency charge would be mandated as a matter of course when sale of narcotics is alleged. Instead, the agency charge should be reserved for cases where there is at least some evidence, however slight, to support the inference that the supposed agent was acting, in effect, as an extension of the buyer.

Accordingly, the orders of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jones, Wachtler, Fuchs-berg and Cooke concur in Per Curiam opinion; Judges Jasen and Gabrielli concur in the opinion except insofar as it justifies the concept of the agency defense (see dissenting opn by Gabrielli, J., in People v Roche, 45 NY2d 78, decided herewith).

Orders affirmed.


author: Cooke, J. Jasen and Gabrielli, JJ.

text:
    The People of the State of New York, Respondent, v Hilda Sierra, Appellant.
    Argued April 24, 1978;
    decided June 15, 1978

      POINTS OF COUNSEL

      Stanley Neustadter and William E. Hellerstein for appellant.
    Appellant was entitled, as a matter of law, to have the jury instructed that the agency defense, already charged to the jury on the sale count, was equally applicable to the simple possession count. (United States v Sawyer, 210 F2d 169; United States v Redwood, 492 F2d 216; People v Buster, 286 App Div 1141; People v Johnston, 47 AD2d 897; People v Lindsey, 16 AD2d 805, 12 NY2d 958; People v Jenkins, 41 NY2d 307; People v Silverman, 23 AD2d 947.)

      Robert M. Morgenthau, District Attorney (Robert M. Pitler and David Rapaport of counsel), for respondent.
    The trial court properly refused to charge the jury that agency constitutes a defense to simple possession. (People v Sheldon K., 26 NY2d 949; People v Garcia, 50 AD2d 730; People v Diaz, 54 AD2d 639; People v O’Keefe, 87 Misc 2d 739; People v Carr, 49 AD2d 656, 41 NY2d 847; People v Lindsey, 16 AD2d 805, 12 NY2d 958.) Opinion per Cooke, J.
   OPINION OF THE COURT

Cooke, J.

We reiterate here that which has been stated before, although not without some controversy, and that which should be readily apparent from legal as well as logical analyses— that the existence of an agency relationship furnishes no defense upon a charge for the mere criminal possession. of a controlled substance, knowingly and unlawfully possessed.

This proposition obtains regardless of whether the charged possession involves a minimum separate quantity or aggregate amount of such a substance or substances (see Penal Law, §§ 220.03, 220.06, subds 2, 3; §§ 220.09, 220.16, subds 8, 9, 10, 11; §§ 220.18, 220.21), and even where the accusation of possession of certain specific controlled substances is predicated also on a previous conviction for possession of one or more of those named substances (see Penal Law, § 220.12). It would not apply, however, where the possession charged also encompasses another element, such as an intent to sell (see Penal Law, § 220.06, subd 1; § 220.16, subds 1-7).

Defendant Hilda Sierra was indicted in New York County on December 6, 1973, charged with criminal sale of a controlled substance in the second degree (Penal Law, § 220.41), criminal possession of controlled substance in the third degree (Penal Law, § 220.16), and criminal possession of a controlled substance in the fifth degree (Penal Law, § 220.09), all allegedly committed on October 18, 1973. During the evening of the day in question, defendant was a barmaid at a dimly lit bar and grill known as "Angel’s Place”, located in the lower east side of Manhattan. There was proof that on that occasion, at the request of undercover Police Officer Guerzon for some cocaine and upon delivery of $195 to defendant, she left the bar and upon return handed him a clear plastic bag containing white powder, later analyzed as weighing in excess of one eighth of an ounce and containing cocaine. The officer also related that he first handed her $175, the cost of the "coke”, that defendant asked, "Well, I am doing you a favor, now what do I get for doing you a favor?”, whereupon he gave her the additional $20.

The trial court submitted to the jury for its consideration the first and third counts, thus omitting the one charging a violation of section 220.16. Agency defense instructions were given in respect to the first count, the sale count but defendant’s request for a similar charge as to the possessory count was denied. Instead, the jury was instructed that agency was not to be considered as a defense to the third count, to which an exception was taken. A partial verdict finding defendant guilty of the third count, criminal possession of a controlled substance in the fifth degree, was rendered and, the jury being unable to agree as to the sale count, a mistrial was declared with respect to it and that count was thereafter dismissed.

To sustain a conviction for the crime of possession of a controlled substance, in its simplest form, the prosecution must prove beyond a reasonable doubt the presence of a controlled substance as statutorily defined, that it was physically or constructively possessed by the accused and that the possession was knowing and unlawful (Penal Law, § 10.00, subd 8; §§ 220.03, 220.00; CPL 300.10, subd 2). As indicated, other offenses of mere possession include the further components of required quantities of certain specific controlled substances, and one felony contains the predicate of a prior conviction. Obviously, the common denominator of these possessory offenses is possession, defined by statute as "physical possession or otherwise to exercise dominion or control over tangible property” and judicially interpreted as encompassing the doctrine of constructive possession, as well as physical possession (Penal Law, § 10.00, subd 8; People v Diaz, 41 AD2d 382, 384, affd 34 NY2d 689; see Hechtman, Practice Commentary, McKinney’s Cons Laws of N Y, Book 39, p 21 [1977-1978 Cumulative Supp]). "Knowledge * * * may be shown circumstantially by conduct or directly by admission, or indirectly by contradictory statements from which guilt may be inferred * * * [and] [generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands, on his person, in his vehicle, or on his premises” (People v Reisman, 29 NY2d 278, 285).

Defendant presses for reversal and a new trial, contending that the defense of agency, charged as to the sale count, was equally applicable to the possession count of which she was found guilty. In drug cases, this defense, undefined by statute, first received judicial recognition in the Federal courts in 1954 (United States v Sawyer, 210 F2d 169, 170) and made its first published appearance in the courts of this State the following year (People v Buster, 286 App Div 1141), in each instance in the context of a sale. Although articulated variously, a recent New York enunciation is that "one who acts on behalf of a purchaser of drugs cannot be convicted of criminal sale of a controlled substance, or of criminal possession thereof with intent to sell” (People v Perez, 60 AD2d 656; see, also, People v Argibay, 45 NY2d 45, 53-54 [decided herewith]; People v Lam Lek Chong, 45 NY2d 64, 73 [decided herewith]; People v Roche, 45 NY2d 78, 82 [decided herewith]; People v Johnston, 47 AD2d 897, 900; People v Lindsey, 16 AD2d 805, affd 12 NY2d 958; People v Branch, 13 AD2d 714). The underlying theorization is that a person, who acts solely on behalf of the recipient of the drugs in a transaction, performs as an extension of the recipient and cannot be guilty of a sale, since that person is merely transferring to the recipient that which the recipient already owns or that to which he is entitled, there being no sale, exchange, gift or disposal of the drugs to the recipient (see United States v Barcella, 432 F2d 570, 571; see, also, Penal Law, § 220.00, subd 1; People v Pasquarello, 282 App Div 405, affd 306 NY 759; Donnino and Girese, The Agency Defense in Drug Cases, NYLJ, April 27, 1978, p 1, col 2).

Conceptually, the theory does not fit within the ambit of mere possesssion, as distinguished from possession with intent to sell, since the former contains no element pertaining to or any exception in respect to an agent or person possessing on behalf of another. Significantly, crimes of possession of controlled substances do not depend upon notions of ownership or title (Penal Law, § 10.00, subd 8; United States v Sawyer, 294 F2d 24, 29). There is no requirement that the prosecution prove that an accused has title to the contraband since guilt may be established regardless of whether it belongs to someone else. Indeed, there is a marked distinction between possession and ownership, to the extent that one may possess a chattel or thing without being its owner and, conversely, may own something without possessing it (People v Matthews, 18 Ill 2d 164, 170). Parenthetically, although proof of title, interest or even equity in or claim to the controlled substance is not essential, testimony in that direction might be relevant to the subject of possession, particularly where it is constructive in nature (see Bernheim, Defense of Narcotic Cases [1977 rev], § 1.10; cf. Rawley v Brown, 71 NY 85, 89).

Defendant next advances the point that her contact with the cocaine was but transitory and passive and that her receipt of it from the seller, on Guerzon’s behalf, and her turning it over to him immediately did not transform her into a principal. Crimes of possession of a controlled substance include but make no allowance or exception for fleeting or momentary contact. This idea of "brief handling” as an exemption from or defense to prosecution, given proof of the necessary elements, has been rejected consistently (People v Martin, 52 AD2d 988, 989; People v Paranzino, 47 AD2d 878, affd 40 NY2d 1005; People v Thomas, 42 AD2d 1019; People v Burke, 25 AD2d 691; Bernheim, Defense of Narcotic Cases [1977 rev], § 1.17, p 1-196). The instant defendant came into the physical possession of the cocaine, she had control over it so that she could have delivered it, discarded it, destroyed it or retained it, and she elected the first of these alternatives; pointedly, she never rejected it (see Commonwealth v Harvard, 356 Mass 452, 457-458).

In the case of contraband such as a controlled substance, its possession is a crime per se and hence the conscious possession of it, if unexplained or falsely explained, permits the inference that the possession is unlawful and a guilty one (People v Reisman, 29 NY2d 278, 286, supra; People v Tirado, 47 AD2d 193, 194-195, affd 38 NY2d 955, 956; People v Berger, 260 App Div 687, 690, affd 285 NY 811). Defendant’s reliance on section 3305 of the Public Health Law is misplaced and her argument drawn therefrom, that her possession was lawful because she was the agent of a police officer entitled to possession, is untenable. This section provides that "temporary incidental possession by employees or agents of persons' lawfully entitled to possession, or by persons whose possession is for the purpose of aiding public officers in performing their official duties” is not prohibited criminal behavior (subd 1; see, also, § 3304). The obvious intent of the statute is to exempt from penal sanction those employees or agents of others whose possession is not proscribed such as, for example, pharmacists’ assistants or private citizens acting for and under direction of the police. The flaw in defendant’s argument is the obvious fact that she had no knowledge or information that Guerzon was a police officer and therefore could not consent to act as an agent or employee of such an officer (see Restatement, Agency 2d, § 1; see, also, Penal Law, § 20.05, subds 1, 2). Since she did not know of his status nor the nature of his activity, neither could her possession have been accomplished "for the purpose of aiding” a public officer in the performance of his official duties. Furthermore, the argument that decisional law recognizes the defense of agency as to mere possession suggests in effect that section 3305 (subd 1, par [c]) serves no purpose and that the Legislature performed a useless act in its passage. It is precisely because possession by an agent may be unlawful that it was necessary to enact the provision and provide protection to certain agents.

The negation of an agency defense in mere possession cases is fotind in People v Sheldon K. (26 NY2d 949), where an adjudication of defendant as a youthful offender " 'on the basis of possession of marijuana as a misdemeanor’ ” was affirmed, despite defendant’s argument that, in the absence of evidence that defendant possessed the marihuana for his own purposes without inducement by the police agent, the proof was insufficient as a matter of law. (See, also, People v Carr, 41 NY2d 847, revg on dissenting opn at 49 AD2d 656; Rosenblatt, New York’s New Drug Laws and Sentencing Statutes [1973], pp 232-233.) In short, the law’s disapproval of the defense in this variety of controlled substance cases has been in existence for a long time and, consistent with our analysis, should so remain.

The order of the Appellate Division should be affirmed.

Jasen and Gabrielli, JJ.

(concurring). We concur in result. However, we agree with Judge Cooke that there is no "agency defense” to a charge of possession of a controlled substance. But we cannot concur in that opinion altogether since we do not believe that there exists or ought to exist an "agency defense” to a charge of sale of a controlled substance (see People v Roche, 45 NY2d 78, dissenting opn by Gabrielli, J., decided herewith). Accordingly, we do not agree with so much of the majority opinion as adopts the "agency defense” in a sales case, nor in that part of the majority opinion which indicates that there might exist an "agency defense” to a charge of possession of a controlled substance, with intent to sell.

Chief Judge Breitel and Judges Jones, Wachtler and Fuchsberg concur with Judge Cooke; Judges Jasen and Gabrielli, concur in result only in a concurring memorandum.

Order affirmed.

      .The issue as to whether agency constitutes a defense here is posed by the parties in their briefs in the context of-"simple possession”. While the expression has the virtue of simplicity and is thus tempting, we abstain from its use since it contains words of art by virtue of their employment in the statutes of one or more other jurisdictions but not in those of New York (see, e.g., US Code, tit 21, § 844; see, also, Bernheim, Defense of Narcotic Cases [1977 rev], § 1.06, p 1-170; Ballentine’s Law Dictionary [3d ed], p 1375 [words of art]; cf Kramer v United States, 408 F2d 837, 840; but see State v Davis, 68 NJ 69).

      .The indictment also contained counts for the same three crimes allegedly committed on October 11, 1973, but the trial court inspected the Grand Jury minutes and dismissed those counts for insufficiency of evidence.


author: Wachtler, J. Jasen and Gabrielli, JJ.

text:
    The People of the State of New York, Respondent, v Lam Lek Chong, Also Known as Jimmy Lam, Appellant.
    Argued April 24, 1978;
    decided June 15, 1978

      POINTS OF COUNSEL

      Henry J. Boitel for appellant.
    I. The court’s charge with respect to the "agency” defense was erroneous, in that it required the jury to reject the agency defense if it found that defendant expected the slightest benefit as a result of his involvement in the transaction. (People v Pasquarello, 282 App Div 405, 306 NY 759; People v Buster, 286 App Div 1141; People v Branch, 13 AD2d 714; People v Lindsey, 16 AD2d 805, 12 NY2d 958; People v Wright, 20 AD2d 652; People v Fortes, 24 AD2d 428; People v Miller, 24 AD2d 1023; People v Silverman, 23 AD2d 947; People v Ivory, 27 AD2d 844; People v Valentine, 55 AD2d 585.) II. Defendant was deprived of a fair trial and of his right to testify in his own behalf when he was prohibited from explaining to the jury the basis for certain of his allegedly incriminatory actions. (Windsor v McVeigh, 93 US 274; People v Harris, 209 NY 70; People v Wood, 126 NY 249; Loetsch v New York City Omnibus Corp., 291 NY 308.) III. Defendant was deprived of due process of law when the trial court charged the jury that the defense was required to prove the defense of entrapment by a preponderance of the evidence. (Mullaney v Wilbur, 421 US 684; People v Patterson, 39 NY2d 288; People v Long, 83 Misc 2d 14; People v Johnston, 47 AD2d 897; United States v Russell, 411 US 423; Rochin v California, 342 US 165; Hampton v United States, 425 US 484.) IV. The defense of entrapment was established as a matter of law; in the alternative, the prosecution failed to overcome defendant’s agency defense. In either event, the conviction should be reversed and the indictment dismissed. (People v Anderson, 42 NY2d 35; People v Carr, 41 NY2d 847.) V. The indictment should be ordered dismissed upon the ground that it is violative of the multiple prosecution prohibition of CPL 40.20. (Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560; United States v Lam Lek Chong, 544 F2d 58; People v Abbamonte, 43 NY2d 74.) VI. Defendant was deprived of a fair trial by the latitude given to the prosecutor in his cross-examination of defendant, wherein the prosecutor was effectively permitted to repeatedly become argumentative with the witness, sum up his case, and dwell upon irrelevant matters in a prejudicial way. (People v Alicea, 37 NY2d 601; People v Steinhardt, 9 NY2d 267; People v Arce, 42 NY2d 179.) VII. The prosecution’s proof, on its main case, with respect to crimes not charged by the indictment, deprived defendant of a fair trial.

      Robert M. Morgenthau, District Attorney (David Rapaport and Robert M. Pitler of counsel), for respondent.
    I. Chong was not entitled to an agency instruction. The evidence demonstrates that Chong was not acting solely as the agent of the undercover police officers. (People v Roche, 58 AD2d 783; United States v Sawyer, 210 F2d 169; United States v Moses, 220 F2d 166; People v Buster, 286 App Div 1141; People v Branch, 13 AD2d 714; People v Lindsey, 16 AD2d 805, 12 NY2d 958; People v Fortes, 24 AD2d 428, 17 NY2d 583; People v Miller, 24 AD2d 1023; People v Ivory, 27 AD2d 844; People v Hool, 46 AD2d 912.) II. Chong was not deprived of a fair trial or of his right to testify in his own behalf when he was prohibited from testifying as to what Francisco Li Ganoza told him. (Tooley v Bacon, 70 NY 34.) III. Chong was not deprived of due process of law when the trial court charged the jury, in accordance with sections 25.00 and 40.05 of the Penal Law that defendant was required to prove the defense of entrapment by a preponderance of the evidence. (People v Laietta,
      30 NY2d 68, 407 US 923; Mullaney v Wilbur, 412 US 684; People v Patterson, 39 NY2d 288; 434 US 197.) IV. Defendant did not establish entrapment as a matter of law. V. The conviction of Chong does not violate the multiple prosecution prohibition of CPL 40.20. (Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560; People v Abbamonte, 43 NY2d 74.) VI. Chong was not deprived of a fair trial by the prosecutor’s cross-examination. VII. The People’s proof respecting the January sale and the Hong Kong venture did not deprive defendant of a fair trial. (People v Calvano, 30 NY2d 199; People v Heffron, 59 AD2d 263; People v O’Keefe, 87 Misc 2d 739.)
   OPINION OF THE COURT

Wachtler, J.

The defendant has been convicted of criminal sale of a controlled substance in the first degree (Penal Law, § 220.43) for allegedly selling a pound and a half of heroin to two undercover police officers in Manhattan. At the trial the defendant denied selling the drugs and testified instead that he had simply acted as the agent of the buyers, by locating a seller and helping the officers complete the purchase. On this appeal the defendant claims that the trial court erred in charging the jury that he could only be considered an agent of the buyers if he acted "purely gratuitously” and that if he received "any benefit, however slight, from having participated in the transaction, he would not be an agent [of the buyers], but a seller.” The prosecutor takes the position that the defendant was not prejudiced by the charge because the evidence, particularly the defendant’s own admissions at the trial, conclusively shows that he was not acting solely as an agent of the buyers. The People also urge that the so-called "agency defense” has been interpreted too broadly by the Appellate Divisions and should either be abandoned or applied only to a narrow class of cases.

The indictment charging the defendant with selling heroin to two undercover police officers on May 30, 1974 was the result of a joint State and Federal narcotics investigation which had begun in January of that year.

At the trial the undercover officers, Wright and Mingo, testified that they first met the defendant on January 24, 1974 at a travel agency, located on Park Row in Manhattan, which was owned and operated by the defendant. They introduced themselves by mentioning a mutual acquaintance, apparently involved in drug traffic, and during a half hour conversation indicated to the defendant that they were pimps and narcotics dealers who had a considerable amount of money available which they wished to invest in heroin. The defendant suggested that they purchase the drug in Hong Kong and smuggle it into the country by, for instance, using women couriers. When the officers asked the defendant if he could sell them some heroin he introduced them to Shark Fish, also known as Robert, who he said "can help you out.”

Several days later Robert and an individual named Sonny sold the officers a pound and a half of heroin at $28,000 a pound. The officers apparently were only prepared to purchase a pound but the dealers insisted that they take the full amount, and the officers left owing $14,000. On January 30 Officer Mingo called the defendant to tell him the heroin was good. In this and later conversations the defendant reminded them of the balance due and told them that the sellers threatened to hold him responsible if the officers failed to pay. Eventually the officers paid the balance; part of it directly to the sellers and the remainder to the defendant. The defendant kept the initial payment of $1,000 but transmitted a later $4,000 payment to Sonny and Robert.

During these meetings the defendant told the officers that he had connections in Hong Kong and cited instances where heroin purchased in the Far East had been smuggled into the United States by ordinary mail, women couriers and merchant seamen. He told them that he had sent a man to Hong Kong to investigate.

Throughout March and April the defendant had several meetings with the officers in various Manhattan hotel rooms. At the first meeting, on March 5, he told them that in the past he had been involved with heroin on a part-time basis but having met them was prepared to arrange a big sale, as much as 50 or 100 pounds. He said that his man in Hong Kong had reported that he could arrange for them to purchase as much heroin as they wanted. He later introduced them to David Chan, the owner of an import-export business who agreed, to smuggle 50 to 100 pounds of heroin into the country for them.

It was finally arranged that the officers would fly to Hong Kong where they would meet an individual named Francisco. The defendant would accompany them provided they paid the expenses of his trip. Mingo and the defendant would remain in the hotel room while Wright went to inspect the heroin. If he found it acceptable Wright would call Mingo who would then transfer the money to the defendant who, in turn, would deliver it to an individual in another room. The heroin would then be delivered to Chan who would seal it in soy bean cans and ship it to the United States. Prior to leaving the officers gave the defendant $1,000 toward his expenses.

On April 17 the officers arrived in Hong Kong where they met the defendant and Chan and were later introduced to Francisco. The defendant told them that they could purchase 100 pounds and showed them a sample of brown rock heroin. After several days of negotiations the deal fell through when the officers refused to put up several thousand dollars as "front money” before being permitted to inspect the full amount offered for sale.

On May 5, having returned to New York, the officers called the defendant at his travel agency and told him they were still interested in buying heroin in smaller quantities. The defendant agreed to contact Robert or Sonny. In numerous telephone conversations between the defendant and the officers negotiations continued throughout the month of May. At one point, May 28, the defendant told the officers that Francisco had agreed to sell them heroin. The next day the defendant told them the sale would take place that night. When Mingo told him that they did not have the money on hand and that it was too late to go to the bank, the defendant complained that something was always going wrong either on "your side” or "this side.”

On May 30 the defendant told the officers that he had a pound and a half of heroin and later arranged to meet them at First Avenue and 6th Street at 11 o’clock that evening. He said they should bring the money and also wanted to be reimbursed for his Hong Kong expenses.

When the officers drove to the scene they saw Robert sitting in a car nearby. They were talking to Robert when the defendant arrived and entered their car. He asked them "Why you play with Robert” and then said "It’s not Robert doing, it’s me doing * * * I give you the stuff, you give me the money, everybody gives, you go and I go OK.” The defendant asked them if they had the money including "my piece”. They said they had $45,000 and "you get your piece out of that.” After the officers showed him an attaché case full of money the defendant told them to drive to another location where he got out of the car and asked Mingo to come with him.

The defendant and Mingo entered a nearby building and went to Francisco’s apartment, which the defendant opened with a key. Inside the apartment the defendant led the officer to a garbage can, removed a package and gave it to the officer stating that it contained one and one-half pounds of brown rock heroin. As they left the building the defendant was arrested.

Most of the conversations with the defendant — on the telephone, in the Manhattan hotels and in the car prior to the sale on May 30 — had been recorded by the police and were played for the jury at the trial. Analysis of the package given to Officer Mingo confirmed the defendant’s statement that it contained one and one-half pounds of heroin.

As noted the defendant testified that he had never sold heroin to the officers but had simply assisted them in their efforts to purchase the drug. He stated that when he first met them he suggested that they invest their money in certain legitimate businesses he planned, specifically a Harlem travel agency and a downtown nightclub. When they insisted on buying heroin he introduced them to a seller in order to cultivate their friendship. He did not participate in the January sale and he received no compensation for bringing buyer and seller together. He admitted that following that sale the officers gave him several thousand dollars and that he kept $1,000. However he claimed that this was a loan to cover his expenses for an upcoming business trip to London.

He also testified that his references to connections in Hong Kong and knowledge of heroin traffic and smuggling routes was part of a story he made up and told the officers to maintain their interest in him. When he was pressured to deliver, he led them on a wild-goose chase to Hong Kong. Upon their return, in order to redeem himself, he once again agreed to help them purchase heroin. Thus he negotiated with Francisco on their behalf and later brought them to the seller’s apartment. However he denied handing Mingo the package of heroin and claimed that they left the apartment when they found the door open and the apartment empty. It was not until they reached the street that the defendant realized that Mingo was carrying a package.

The defendant testified that he did not receive, and was not to receive any profit from this transaction. He was not working for Francisco and expected no compensation from him. He did expect the officers to reimburse him for his Hong Kong expenses, but he did not expect to share in the profits when they resold the heroin. In short, he claimed that he had simply acted out of friendship and with the hope that if he helped them purchase heroin they might later help him by investing in certain legitimate business ventures.

Under New York law a person may be found guilty of selling drugs when he gives them to another even though he has received nothing in return. Subdivision 1 of section 220.00 of the Penal Law states: " 'Sell’ means to sell, exchange, give or dispose of to another, or to offer or agree to do the same.” Reading the statute literally, any passing of drugs from one person to another would constitute a sale. There are cases where it can be seen that this is what the Legislature intended. For instance, the pusher who introduces a potential addict to heroin, free of charge, is at least as culpable as the pusher who sells to one who is already addicted, and there is no reason why they should be treated differently under the law (cf. People v Broadie, 37 NY2d 100, 113). There are also sophisticated drug transactions, particularly larger sales, where it may be difficult or impossible to prove there has been a sale or exchange in the ordinary sense because the transfer of the drugs and the money may occur at different times and places. In those cases too proof of the transfer of the drugs alone may suffice to prove the sale.

However there are certain cases where the defendant’s mere delivery of the drugs does not appear to involve the same degree of culpability, or warrant the extreme penalties, associated with pushing drugs. For instance, when a friend of the defendant gives him money and asks him to purchase a small quantity of drugs the defendant’s delivery of the drugs to the buyer could be considered a sale under a literal interpretation of the statute although, as a practical matter, he was simply a buyer who purchased the drugs on behalf of another.

, The People urge that in such a case the Legislature intended the defendant to be considered a seller because intermediaries, like sellers, are an essential link in the illicit drug traffic the statute was designed to eliminate. This, of course, could also be said of buyers, since without buyers there would be no sales. Nevertheless the buyer is not considered an accomplice of the seller (People v Pasquarello, 306 NY 759), and in fact the buyer, despite his key position in the drug cycle, is generally treated more leniently than the seller. Buying drugs is not a crime in itself, although the buyer may be convicted of illegal possession (Penal Law, §§ 220.03, 220.06, 220.09, 220.16, 220.21). But the buyer’s liability for possession of a narcotic drug is not as great as the seller’s liability for making the sale (compare Penal Law, § 220.43, subd 1, and § 220.18, subd 1; § 220.41, subd 1, and § 220.09, subd 1; § 220.39, subd 1, and § 220.03) unless a large sale is involved (see Penal Law, § 220.43, subd 1; and § 220.21, subd 1).

Under similar statutory schemes, where the buyer’s criminal liability differs from the seller’s, it has been held that the intermediary who merely purchased the item for the buyer cannot be convicted of selling. The rule was first recognized at the turn of the century in cases involving the sale of alcohol where the statutory scheme prohibited the sale or furnishing of liquor but did not prohibit the purchase. Despite the broad wording of the statute it was held that the Legislature did not intend to punish, as a seller, one who had simply purchased a bottle at the buyer’s request to accommodate him (see, e.g., State v Lynch, 81 Ohio St 336; Ann., 28 LRA [NS] 334; see, also, Ann., 24 LRA [NS] 268; People v McCrory, 222 NYS2d 112). The rule was later adopted by the Federal courts as applicable to illegal alcohol and drug transactions (United States v Sawyer, 210 F2d 169; United States v Moses, 220 F2d 166; but see United States v Pruitt, 487 F2d 1241).

In this State it has long been held that "[o]ne who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics” (People v Branch, 13 AD2d 714; see, also, People v Buster, 286 App Div 1141; People v Lindsey, 12 NY2d 958, People v Wright, 15 NY2d 555; People v Bray, 15 NY2d 637; People v Hollins, 19 NY2d 864; People v Harris, 24 NY2d 810; People v Hingerton, 26 NY2d 790; People v Jenkins, 41 NY2d 307; People v Carr, 41 NY2d 847; People v Silverman, 23 AD2d 947; People v Fortes, 24 AD2d 428, app dsmd 17 NY2d 583). The rule is essentially an interpretation of the statute defining the term "sell” (Penal Law, § 220.00, subd 1, formerly Penal Law, § 220.00, subd 5) and is designed to carry out the legislative intent under an elaborate and carefully drawn statutory scheme which, although broadly aimed at destroying traffic in drugs (see People v Broadie, 37 NY2d 100, supra), imposes different liability on buyer and seller in all but the largest sales.

Since the State-wide acceptance of the agency principle, the statutory definition of "sell” has been revised as part of the over-all revision of the Penal Law effective in 1967 (L 1965, ch 1030). The wording however is essentially the same — the Legislature added "dispose of’ to "sell, exchange or give” (compare former Penal Law, § 1751, subd 1) — and there is no indication that the Legislature intended to abandon the judicial construction which had been previously accepted throughout the State. Indeed following the revision of the Penal Law, and the later extensive amendments to the drug article (Penal Law, art 220, L 1973, ch 276; see People v Broadie, 37 NY2d 100, supra) the courts have continued to apply and refine the agency concept in cases where the defendant acted as an intermediary between buyer and seller (see, e.g., People v Jenkins, 41 NY2d 307, supra; People v Carr, 41 NY2d 847, supra; People v Fuller, 34 AD2d 852; People v Pierce, 40 AD2d 581; People v Flanagan, 47 AD2d 959; People v Bostick, 51 AD2d 749; People v Munoz, 54 AD2d 844).

The so-called agency defense is not a complete defense. The defendant who has been a party to a drug sale is not relieved of all criminal responsibility simply because he was acting for the buyer. The agency concept is essentially a means of determining the extent of the intermediary’s culpability, and thus the nature of his crime, under a statutory scheme which reserves the most severe penalties for the "tycoons of the trade” (see 1964 Commission Staff Notes, to the Revised Penal Law, art 225, now art 220). Evidence that the defendant was acting solely as an agent of the buyer is properly employed to determine whether he is guilty of possession, instead of sale (cf. People v Carr, 41 NY2d 847, supra). The fact that the defendant was acting as a buyer is no defense to a possession charge when the Legislature has made buyers liable for the offense (People v Sierra, 45 NY2d 56, decided herewith; People v Argibay, 45 NY2d 45, decided herewith; People v Sheldon K., 26 NY2d 949).

The determination as to whether the defendant was 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 (see, e.g., People v Bray, 15 NY2d 637, supra; People v Hingerton, 26 NY2d 790, supra; People v Harris, 24 NY2d 810, supra; People v Carr, 41 NY2d 847, supra). Among other things the jury may consider 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. But basically the jury must rely on its own common sense and experience to determine whether, under the circumstances, the defendant was in fact accommodating a friend or was simply a streetwise peddler attempting to avoid the penalties for sale. Of course the accommodation buyer is not uncommon and the average person, including the juror, should be able to perceive "the reality of the situation * * * without minutely detailed analysis” or instruction from the court (People v Yanik, 43 NY2d 97, 100-101). There is no legal formula for determining the defendant’s intent at the time of the drug transfer.

Thus the jury may find that the defendant who frequently or regularly purchased durgs for other persons from the same seller was allied with the seller. But even though the defendant may admit the other purchases the jury should not be precluded from finding, as a matter of fact, that he was in the habit of doing favors and acted solely on the buyer’s behalf at the time of the sale (People v Carr, 41 NY2d 847, supra; cf People v O’Keefe, 87 Misc 2d 739).

Similarly the fact that the defendant anticipated or received a profit from the sale may be sufficient to establish his intent to sell at the time of the transfer. But it is not unlikely that the buyer, who has obtained drugs with the aid of the defendant, will offer the defendant a share, a tip or reimbursement for expenses as a token of friendship or appreciation for the favor. This frequently happens when the buyer has purchased the drugs or marihuana for consumption and the defendant shares his tastes or is himself an addict. Of course receipt of any benefit, particularly a substantial reward promised in advance may be sufficient, as a matter of fact, to show that the defendant did not act solely to accommodate the buyer. But receipt of some incidental benefit, does not necessarily or even ordinarily alter the relationship between the parties, the nature of the transaction or the defendant’s culpability.

Thus the court erred in charging the jury that they could not find that the defendant acted as an agent of the buyer if he received any benefit however slight (People v Bostick, 51 AD2d 749, supra; People v Valentine, 55 AD2d 585; People v Rodriguez, 56 AD2d 545; People v Wright, 15 NY2d 555; People v Fortes, 24 AD2d 428; cf. People v Bray, 15 NY2d 637, supra; People v Robert W., 47 AD2d 793). The error however does not call for reversal because on this record the defendant was not entitled to an agency charge.

This is not a case where the defendant simply purchased and delivered a small quantity of drugs solely to accommodate a friend, without any commercial interest in promoting a sale (see, e.g., People v Argibay, 45 NY2d 45, supra). Here the defendant admitted at trial that he had arranged a large drug sale and hoped to receive a substantial benefit in the form of business loans from the grateful buyers. The transaction in fact was completely commercial since the buyers themselves obviously did not intend to consume one and a half pounds of heroin, and indeed, the defendant admitted that they had informed him that they were drug dealers who intended to obtain the drugs for resale. Thus the defendant admitted that he was an intermediary between drug merchants and intended to profit, at least collaterally, from the delivery of the drugs and therefore from the commercial traffic in drugs generally. Realistically, by his own admissions, the defendant could only be considered one of the drug merchants or sellers for whom the Legislature has reserved the most severe penalties. On his own testimony, despite his protestations, it is concluded, as a matter of law, that on no reasonable view could a jury have found defendant to be merely an agent.

This then is one of those cases where it is clear that the Legislature intended the statute to apply literally. In view of the commercial quantity of the drugs involved and the defendant’s clear intent to exploit the sale, the jury could only find that the defendant was a seller once they found, as they did, that he gave the drugs to the officers (Penal Law, § 220.00, subd 1).

Accordingly, the order of the Appellate Division should be affirmed.

Jasen and Gabrielli, JJ.

(concurring). We concur in result only because we reject the agency defense, as is articulated and explained in the dissenting opinion by Judge Gabrielli in People v Roche (45 NY2d 78, decided herewith).

Chief Judge Breitel and Judges Jones, Fuchsberg and Cooke concur with Judge Wachtler; Judges Jasen and Gabrielli concur in result only in a concurring memorandum.

Order affirmed.

      .The defendant was also indicted by a Federal Grand Jury. Following the trial on the State indictment the defendant was tried in Federal court and was convicted of conspiring to import and distribute heroin in violation of section 846 of title 21 of the US Code. That conviction has been affirmed (United States v Lam Lek Chong, 544 F2d 58).

      .We also note that in cases like this, involving large drug sales, the Legislature has not followed the general statutory scheme of imposing different criminal liabilities on buyer and seller. Under the new drug law (L 1973, ch 276) anyone who sells one or more ounces of a narcotic drug is guilty of an A-I felony (Penal Law, § 220.43, subd 1) and anyone who possesses two or more ounces of a narcotic drug is also guilty of an A-I felony (Penal Law, § 220.21, subd 1). Thus in the large drug sales — that is, any sale involving two or more ounces of narcotic drugs — the Legislature has imposed the same penalty on buyer and seller. The theory is that anyone possessing a large quantity of drugs intends to resell them and is a drug merchant who is just as culpable as the seller from jvhom he has purchased them (People v Broadle, 37 NY2d 100, 113, supra).