14 N.Y.3d 20 (2009)
Criminal possession of a controlled substance is not a lesser included offense of criminal sale of a controlled substance under New York law, even when an agency defense is presented, because it is theoretically possible to commit the sale crime without necessarily committing the possession crime.
Summary
George Davis was convicted of criminal sale of a controlled substance. At trial, he requested a jury instruction on the agency defense (arguing he acted as the buyer’s agent) and also requested that the court charge criminal possession as a lesser included offense. The trial court granted the agency defense instruction but denied the lesser included offense charge. The New York Court of Appeals affirmed the conviction, holding that criminal possession is not a lesser included offense of criminal sale, even when the agency defense is raised, because the theoretical possibility exists to sell without possessing. This decision emphasizes a strict application of the ‘impossibility’ test for lesser included offenses.
Facts
An undercover officer approached Davis outside a building known for drug sales, requesting two bags of crack cocaine and providing $60. Davis entered the building, returned, and handed the officer the drugs. At trial, Davis testified that the officer solicited his help in purchasing crack, promising to “look out for” him. Davis claimed he led the officer to the building, took $40, purchased the crack inside, and gave it to the officer, receiving no payment for his services. He argued he was merely acting as an agent for the buyer.
Procedural History
Davis was indicted for criminal sale of a controlled substance in the third degree. At trial, he requested and received an agency defense instruction. He also requested a charge for criminal possession of a controlled substance as a lesser included offense, which was denied. He was convicted. The Appellate Division affirmed. The Court of Appeals granted leave to appeal and affirmed the Appellate Division’s ruling.
Issue(s)
Whether the trial court erred in refusing to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal sale of a controlled substance in the third degree, when an agency defense was properly submitted to the jury.
Holding
No, because it is theoretically possible to commit the crime of criminal sale of a controlled substance without, by the same conduct, committing the crime of criminal possession of a controlled substance. The agency defense does not alter this analysis.
Court’s Reasoning
The Court of Appeals relied on the two-pronged test established in People v. Glover to determine whether a defendant is entitled to a lesser included offense charge. The first prong requires that it be theoretically impossible to commit the greater crime without committing the lesser. The Court emphasized that this determination is made by a “comparative examination of the statutes defining the two crimes, in the abstract” (Glover). Here, the court reasoned that one can “offer or agree to” sell drugs without having physical possession or control over them. The court dismissed the argument that the agency defense changes this analysis. The agency defense is an interpretation of the definition of “sell.” The Court stated, “Although ‘[r]eading the statute literally, any passing of drugs from one person to another would constitute a sale,’ we have held that ‘[o]ne who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics’.” Because the agency defense is still a defense to sale, the Court reasoned that the Glover test remains applicable and an exception to the test is not warranted. As such, the Court affirmed the lower court’s conclusion. The dissenting opinion argued for an exception to the Glover test when the agency defense is invoked. The dissent contended that because a defendant asserting the agency defense essentially admits to possessing the drugs on behalf of the buyer, a charge of simple possession should be included to avoid coercing the jury into either acquitting a defendant who admits to criminal conduct or convicting them of a greater crime.