Opinion
December 24, 1992
Appeal from the County Court of Montgomery County (Aison, J.).
This drug prosecution stems from defendant's sale of one gram of cocaine to Edward Dillon, an undercover police officer, on two different occasions during the evening of August 26, 1989. On the first occasion, Dillon, accompanied by an informant, purchased one gram of cocaine from defendant for $100 at defendant's apartment. When they returned on the second occasion, defendant advised Dillon and the informant that they would have to "take a ride" so he could get more cocaine. They left together and proceeded to another location, where defendant went inside. The three men then returned to defendant's home whereupon defendant separated out one gram of cocaine and sold it to Dillon, again for $100. On both occasions, a young child was present in defendant's home. Defendant was subsequently indicted, inter alia, for the crimes in connection with these drug sales; following a jury trial, he was found guilty as charged and sentenced.
Defendant's principal argument on appeal is that County Court committed reversible error in denying his request to submit the crimes of criminal possession of a controlled substance in the fifth and seventh degrees (Penal Law § 220.03, 220.06 Penal) to the jury as lesser included offenses to the two principal crimes of criminal sale of a controlled substance in the third degree. While acknowledging that possession offenses are not lesser included offenses of criminal sale of a controlled substance in the third degree (see, People v Simms, 176 A.D.2d 833, lv denied 79 N.Y.2d 832; People v Brooks, 115 A.D.2d 177, lv denied 67 N.Y.2d 759; People v Cogle, 94 A.D.2d 158, 159), defendant relies upon the Court of Appeals' decisions in People v Sierra ( 45 N.Y.2d 56) and People v Carr ( 41 N.Y.2d 847) for the proposition that this rule is subject to exception in situations where the agency defense is raised.
The theory of the agency defense is that "one who acts solely as an agent for the buyer of narcotics cannot be convicted of the crime of selling those narcotics" (People v Ortiz, 76 N.Y.2d 446, 448-449). However, agency is not a complete defense. While, if successful, the agency defense will exonerate a defendant of a criminal sale conviction, evidence of agency can be used to find a defendant guilty of criminal possession of a controlled substance (see, e.g., People v Lam Lek Chong, 45 N.Y.2d 64, cert denied 439 U.S. 935).
We disagree. In People v Carr (supra), the Court of Appeals' conclusion that it was reversible error for the trial court to refuse the defendant's request to charge criminal possession of a controlled substance as a lesser included offense of the crime of criminal sale of a controlled substance in the fifth degree was not based upon some exception to the lesser included offense rule when the agency defense is raised. Rather, it was premised upon the fact that under the circumstances presented, the failure to charge as requested worked a violation of CPL 300.50 inasmuch as, under the then-prevailing interpretation of CPL 1.20 (37), possession crimes were lesser included offenses of sale crimes and a reasonable interpretation of the evidence presented in that case supported the possibility that the defendant was acting merely as an agent for the seller and thus could only be found guilty of the lesser offense. Because under the current interpretation of CPL 1.20 (37) (see, People v Glover, 57 N.Y.2d 61) possession counts are not lesser included offenses of sale counts (see, e.g., People v Cogle, supra), there is no similar CPL 300.50 violation here.
We likewise disagree with defendant's corollary argument that a handwritten report prepared by Dillon concerning both drug transactions constituted Rosario material and the prosecution's inability to turn it over because Dillon had destroyed it after he "typed [it] over" was a Rosario violation warranting the delivery of an adverse inference charge. Unquestionably the handwritten report was Rosario material (see, e.g., People v Gilligan, 39 N.Y.2d 769; People v Malinsky, 15 N.Y.2d 86, 90-91). However, assuming that Dillon's bare testimony that he typed over the report is insufficient to satisfy the People's burden of proving that the typewritten report (which was turned over to defendant) was the duplicative equivalent of the destroyed handwritten report (see, People v Young, 79 N.Y.2d 365, 369; People v Ranghelle, 69 N.Y.2d 56; People v Cortez, 185 A.D.2d 113; People v Serrando, 184 A.D.2d 1094, lv denied 80 N.Y.2d 837; People v Winthrop, 171 A.D.2d 829), there is absolutely no indication, suggestion or hint by defendant that he was prejudiced thereby (see, People v Martinez, 71 N.Y.2d 937, 939; People v Dolan, 172 A.D.2d 68, 76, lv denied 79 N.Y.2d 946; People v Winthrop, supra; People v Merchant, 171 A.D.2d 887; cf., People v Greany, 185 A.D.2d 376). Indeed, defendant's failure to make any use whatsoever of the typewritten report during his cross-examination of Dillon strongly suggests that the document (or its handwritten original) had little or no relevance or importance to defendant's case (cf., People v Wallace, 76 N.Y.2d 953).
We have reviewed defendant's remaining contentions and find them to be without merit.
Yesawich Jr., J.P., Levine, Crew III and Harvey, JJ., concur. Ordered that the judgment is affirmed.