People v. Ortiz

163 A.D.2d 61, 558 N.Y.S.2d 22, 1990 N.Y. App. Div. LEXIS 8104

Opinion

Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered August 22, 1988, which convicted defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentenced him to 4 Vz to 9 years’ imprisonment, unanimously reversed, on the law, and the matter remanded for a new trial.

The trial court erred when it refused to charge the defense of agency in this case, where a reasonable view of the evidence could have led the jury to conclude that defendant acted as a mere instrumentality of the buyer, thus supporting a theory of agency, which was the sole defense in this case. (People v Roche, 45 NY2d 78, 86, cert denied 439 US 958 [1978].) Specifically, defendant was entitled to the requested jury instruction based upon his testimony that he did not know the seller, and that he was acting solely on behalf of the buyer, a ''pretty woman”, who ultimately proved to be an undercover police officer. (People v Roche, 45 NY2d 78, 83, supra; People v Argibay, 45 NY2d 45, 55, cert denied sub nom. Hahn-DiGuiseppe v New York, 439 US 930 [1978]; People v Miano, 143 AD2d 777 [2d Dept 1988]; People v Garay, 128 AD2d 413 [1st Dept 1987]; see generally, People v Lam Lek Chong, 45 NY2d 64, 75, cert denied 439 US 935 [1978] [enumerating the factors to be considered in determining whether an agency relationship existed].)

Accordingly, we reverse and remand for a new trial. Concur —Ross, J. P., Carro, Wallach and Rubin, JJ.