Opinion
May 15, 2001.
Judgment, Supreme Court, New York County (Dora Irizarry, J.), rendered March 2, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39), and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously reversed, on the law, and the matter remanded for a new trial.
Joseph A. Davis II, for respondent.
Natalie Rea, for defendant-appellant.
Before: Rosenberger, J.P., Mazzarelli, Ellerin, Wallach, Buckley, JJ.
Defendant's request for an agency charge should have been granted, because a reasonable view of the evidence could support the inference that he was acting as an agent of the undercover officer (see, People v. Argibay, 45 N.Y.2d 45, 53-55, cert denied sub nom, Hahn-DiGuiseppe v. New York, 439 U.S. 930; People v. Lam Lek Chong, 45 N.Y.2d 64, 73, cert denied, 439 U.S. 935; People v. Roche, 45 N.Y.2d 78, 86, cert denied, 439 U.S. 958; People v. Butts, 72 N.Y.2d 746, 750). The People argue that the judgment should be affirmed because: the undercover officer and defendant were complete strangers; defendant revealed a relationship with the drug culture by recognizing "D" as a street name for heroin and offering to get the undercover the two glassine envelopes he had requested; and defendant also revealed a fear of apprehension by asking the undercover whether he was a cop. Were this all there was, the denial of an agency charge would have been proper (see, People v. Vasquez, 253 A.D.2d 728; People v. Herring, 83 N.Y.2d 780, 783).
In this case, however, there is more. Defendant approached the undercover officer asking for a cigarette, and the officer gave him one. The officer then asked him to get drugs, giving the defendant $20.00. As defendant was about to leave to get the drugs, the officer asked him for security, and defendant gave him a pouch containing identification. Defendant did not hawk drugs or solicit customers. He did not tout the quality of the drugs or engage in any salesman-like behavior. The transaction proceeded at a leisurely pace. In addition, neither pre-recorded money nor drugs were found on defendant when he was almost immediately arrested. Under these circumstances, a jury could reasonably conclude defendant intended only to reciprocate the undercover officer's favor by obtaining the drugs he requested, and was acting as his agent.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.