People v. Samuels

231 A.D.2d 424, 647 N.Y.S.2d 78, 1996 N.Y. App. Div. LEXIS 9336

Opinion

Judgment, Supreme Court, New York County (Antonio Brandveen, J., at initial plea and predicate felony hearing; George Roberts, J., at second plea and sentence), rendered August 2, 1994, convicting defendant of criminal sale of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

As in People v Rexach (220 AD2d 362, lv denied 87 NY2d 924), we reject defendant’s claim that he was improperly adjudicated a second felony offender on the basis of his prior North Carolina narcotics conviction under a statute which, unlike its New York "sale” counterparts, does not appear to be subject to the defense of agency. In any event, the "definitions” statute (NC Gen Stat § 90-87 [2], [7]), cited by defendant, focuses on the accused’s status as agent of the seller (cf., People v Herring, 83 NY2d 780) and does not explicitly preclude a defense that the accused acted as agent of the buyer. Concur—Murphy, P. J., Rosenberger, Wallach, Kupferman and Nardelli, JJ.