Opinion
November 17, 1967
Appeal from a judgment of conviction rendered by the County Court of Sullivan County based on a jury verdict finding defendant guilty of selling a narcotic drug (Penal Law, § 1751, subd. 1). Detective Mamet, an undercover investigator, met defendant at approximately 12:30 P.M. on August 3, 1966 in the Town of Woodridge, New York. He testified that he asked defendant if defendant could "score a bag" for him. Defendant told Mamet that he would have to go to Monticello to get it. Mamet gave defendant $15 which he requested and defendant left. He returned in about an hour and gave Mamet a glassine envelope which contained heroin. Defendant testified that Mamet and another person who he knew as Mousey approached him on the day in question. He stated that Mousey asked him to get narcotics for him. When defendant agreed, Mousey obtained $15 from Mamet who was down the street and gave it to defendant. Defendant went and purchased a bag, returned to the original meeting place and gave the bag to Mousey. He stated that he gave the $15 to the individual from whom he purchased the bag. Defendant contends that he was the agent of the buyer and therefore could not be convicted of selling narcotics. There were two conflicting versions of what took place presented and there are factual questions raised whether Mousey or the alleged third person seller existed or not. There was ample evidence for the jury to find that defendant was the actual seller (see People v. Wright, 20 A.D.2d 652, affd. 15 N.Y.2d 555). Mamet testified that only he and the defendant were present at their two meetings and there is nothing in the prosecution's evidence to indicate any third person was involved or that defendant was an agent or accomplice. The question as to which recitation of what happened is correct is a factual one for the jury, as is the issue whether an agency existed ( People v. Pulliam, 28 A.D.2d 786). It is obvious that the jury rejected defendant's story and believed Mamet's testimony and this is entirely consistent with the conclusion that defendant was the seller. The cases cited by appellant are distinguishable. Those which mandate a finding of agency contain clear evidence of a third person seller. The very existence of such a person was an issue submitted to the jury in the instant case and this factual question has been decided against the defendant. We have reviewed defendant's other allegations, his memorandum of error filed pro se, and find them to be without merit. Judgment affirmed. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.