Opinion
June 28, 1967
Appeal from a judgment of the County Court, County of Albany, rendered upon a verdict convicting the defendant of the crime of selling a narcotic drug. (Penal Law, § 1751.) The defendant was arrested after two detectives of the Albany Police Department had observed a sale of heroin to one Dahl, a dope addict. At the suggestion of the two detectives, Dahl had called the defendant on the telephone and they arranged for a meeting at an appointed place, the corner of Franklin and Bassett Streets. They thereafter met and, under observation by the two detectives, Dahl handed the defendant money given to him by the detectives. The defendant walked around the corner, and two or three minutes later returned and handed Dahl a glassine envelope containing white powder. After the defendant had left Dahl, one of the detectives followed Dahl on foot for a distance of seven or eight blocks and, at a pre-arranged spot, the other detective met them with a police car. Dahl gave the glassine envelope to the detectives and also made a statement, which he signed, setting forth that he had paid the defendant $10 for which the defendant sold him a bag of heroin. The glassine envelope, with its contents, was submitted to the State Police Laboratory for analysis which resulted in a finding that the white powder was heroin. The defendant testified that on a number of occasions he received from Dahl money to buy "stuff" for Dahl which he bought from some other person, and that he did not sell Dahl anything, but that he bought it for him. The appellant contends that, since the was lured into the commission of the claimed overt acts, he was subjected to an entrapment and cannot be punished therefor and asserts in his brief that if the principle of entrapment as a legal proposition has not heretofore been recognized in New York, it should now be "finally recognized". (It might be noted that the new Penal Law [§ 35.40, eff. Sept. 1, 1967] recognizes entrapment as a defense; this for the first time in New York.) Under the principle as recognized elsewhere, the mere setting of a trap is not a defense, however, where the criminal act is voluntarily committed by a person who is ready and willing to commit an offense. ( People v. Mills, 178 N.Y. 274; People v. Conrad, 102 App. Div. 566, affd. 182 N.Y. 529. ) The trial court, assuming the availability of the defense, correctly charged the generally recognized elements of entrapment and the determination of the jury that the acts of the detectives and Dahl in providing the opportunity for the appellant to commit the offense charged, did not constitute an entrapment is amply supported by the evidence. The appellant also contends that the appellant acted as an agent for Dahl. One who acts solely as the agent of the buyer cannot be convicted of selling narcotics. ( People v. Lindsey, 16 A.D.2d 805, affd., 12 N.Y.2d 958.) "An issue is raised as to agency where the purchaser induces the defendant to take him to the supplier and the defendant makes the purchase under the immediate supervision of the eventual buyer * * * though even these facts are not conclusive as to an agency but only raise an issue." ( People v. Fortes, 24 A.D.2d 428.) The testimony of Dahl and the appellant conflict as to whether or not the defendant made a sale to Dahl or whether he made a purchase for Dahl as his agent. The credibility of their testimony was a matter for the jury to determine. The issue of agency was submitted to the jury which obviously rejected the testimony of the appellant, and accepted the testimony of Dahl. There was no error in permitting the introduction of the narcotic into evidence. The narcotic was relevant, and the proof concerning the taking, custody, control, examination and identification was adequate. The chain of possession and control established on the trial sufficiently demonstrated that the narcotic introduced in evidence was the same item received by Dahl from the appellant. The final contention made by the appellant is that his constitutional right of due process was violated by reason of the de facto policy of the County of Albany in excluding Negroes from serving on Grand Jury panels by reason of race. It is contended that, since the appellant is a Negro, this policy deprived him of due process. It is not sufficient to merely assert such a policy without proof of any facts to support the conclusion. The burden of proof was upon the appellant to prove the existence of such a policy in the County of Albany, and no evidence was presented on this issue. There being no proof of the necessary facts to support this contention, it is wholly without merit. Judgment affirmed. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.