People v. Oliver

99 A.D.2d 789, 471 N.Y.S.2d 885, 1984 N.Y. App. Div. LEXIS 17178

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 1984
• Status: Published

Opinions

Appeal by defendant from a judgment of the Supreme Court, Queens County (Beldock, J.), rendered May 5,1981, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. The evidence adduced at trial raised a substantial issue as to “whether the defendant had acted as an agent of the buyer, the undercover police officer, and, therefore was not guilty of the crime of selling a narcotic drug for which he was convicted (People v Roche, 45 NY2d 78)” (People v Nunez, 67 AD2d 612). While defense counsel neither requested that an agency defense be charged nor objected to the court’s failure to do so, under the facts at bar we consider it appropriate that we exercise our discretionary power to act in the interest of justice (see CPL 470.15, subd 3, par [c]; subd 6, par [a]; People v Nunez, supra). This court recently set forth the factors to be considered in determining whether a defendant is an agent of a buyer: “(1) did the defendant act as a mere extension of the buyer throughout the relationship, with no independent desire to promote the transaction; (2) was the purchase suggested by the buyer; (3) did the defendant have any previous acquaintance with the seller; (4) did the defendant exhibit any salesmanlike behavior; (5) did the defendant use his own funds; (6) did the defendant procure from many sources for a single buyer; (7) did the buyer pay the seller directly; (8) did the defendant stand to profit; and (9) was any reward promised in advance (People v Gonzales, 66 AD2d 828)” (People v Bethea, 73 AD2d 920, 921). In applying these considerations to the evidence presented in this case it becomes apparent that a reasonable view of the evidence would support the conclusion that defendant was acting as the agent of the buyer, the undercover police officer (see People v Roche, 45 NY2d 78, 86). The sale in question occurred in an after-hours club which was managed by defendant. According to defendant, who was the sole witness in his own behalf, he was in his office in the basement of the club when the undercover officer approached him. Although he had met the officer on other occasions, that was the first time he had seen him on that evening. The officer inquired about purchasing some “stuff”, which defendant assumed meant drugs. Two other men, Oscar and Johnny, were also present at that time. Defendant testified that before he had a chance to respond to the officer’s inquiry, Oscar, who apparently had overheard the officer’s remarks, stated, “I have something good”. The officer then approached Oscar and defendant walked away. According to the People’s version, defendant approached the officer upstairs in the club itself and, after some heated conversation, instructed the officer to follow him down to the basement. In the basement, defendant introduced the officer to Oscar and Johnny and told him that Oscar had some good stuff. After discussing the purchase of drugs with Oscar, the officer took defendant outside the room. Since he had never met Oscar before, he asked defendant how well he knew him. Defendant said he knew Oscar well and vouched for the quality of his “stuff”. The officer then returned to the room and handed Oscar $175 in exchange for a plastic bag of white powder which was later determined to be cocaine. After a brief discussion with defendant, the officer went upstairs and left the club. No evidence was presented which would suggest that defendant either stood to profit from the sale or that a reward was promised in advance. In considering all of the facts and circumstances here present, and in applying the factors set forth in People v Bethea (73 AD2d 920, supra), it becomes apparent that a reasonable view of the evidence is supportive of the contention that the “defendant acted as a mere instrumentality of the buyer” (People v Roche, 45 NY2d 78, 86, supra). It was thus error for the court to fail to charge the defense of agency. A determination of the existence of an agency relationship should have been submitted to the jury, with appropriate instructions {People v Argibay, 45 NY2d 45, 53; People v Roche, supra, p 86). Inasmuch as proof of defendant’s guilt was not overwhelming, this error cannot be considered harmless and reversal is required (see People v Crimmins, 36 NY2d 230, 241). Furthermore, we note that the prosecution repeatedly sought or elicited testimony about uncharged drug sales allegedly involving defendant that occurred both before and after the drug sale at issue. It also asked questions concerning illegal activities occurring at the night club that defendant managed and with respect to defendant’s purported familiarity with drugs. The court sustained objections to these questions and answers and directed the jury to disregard anything not admitted into evidence and to draw no inferences therefrom. Nevertheless, the effect of these comments on the jury was highly prejudicial. We have examined the remainder of defendant’s contentions and find them to be without merit. Bracken, J. P., Brown and Niehoff, JJ., concur.