New York Law Review

Tag: Agency Defense

  • People v. Small, 28 N.Y.3d 151 (2016): Admissibility of Prior Bad Acts (Molineux Evidence) When Defendant Raises Agency Defense in Drug Sale Case

    28 N.Y.3d 151 (2016)

    When a defendant asserts an agency defense in a drug sale case, the prosecution may introduce evidence of the defendant’s prior drug sale convictions (Molineux evidence) on their direct case to establish the defendant’s intent to sell, even if the defense is based on evidence presented by the prosecution.

    Summary

    The case concerns the admissibility of prior bad acts evidence (Molineux evidence) in a drug sale case. The defendant argued an agency defense – that he was merely assisting the buyer. The trial court, after the defendant requested an agency instruction, allowed the prosecution to introduce evidence of the defendant’s prior drug sale conviction. The New York Court of Appeals affirmed, holding that when a defendant raises an agency defense, even based on the prosecution’s evidence, the prosecution may introduce Molineux evidence of prior drug sales to prove intent. The court emphasized that the trial court must first determine whether the probative value of such evidence outweighs its potential prejudice to the defendant.

    Facts

    Undercover officers observed the defendant and another individual, Barrios. Barrios gave the defendant money, after which the defendant entered a building, emerged, and gave Barrios glassine envelopes. Police arrested the pair and recovered heroin from Barrios and a small amount of money from the defendant. The defense counsel gave notice of a possible agency defense. During cross-examination, defense counsel attempted to establish that the defendant was acting as a friend to the buyer, focusing on their relationship and the small amount of money the defendant possessed. The defense did not call the buyer to testify. After the close of the People’s case, the court granted the defendant’s request for an agency instruction, after which the prosecution was permitted to introduce evidence of the defendant’s prior drug sale conviction, with the proper limiting instructions. The jury found the defendant guilty.

    Procedural History

    The trial court allowed the prosecution to introduce the Molineux evidence. The defendant was convicted. The Appellate Division affirmed the conviction, ruling the evidence was properly admitted. The New York Court of Appeals granted leave to appeal and also affirmed the conviction.

    Issue(s)

    1. Whether the trial court abused its discretion by permitting the prosecution to introduce evidence of the defendant’s prior drug sale conviction on their direct case, given that the agency defense was supported solely by inferences drawn from the prosecution’s evidence?

    Holding

    1. No, because the trial court did not abuse its discretion as the defendant raised the issue of intent by seeking the agency defense, thereby opening the door for the introduction of the prior conviction evidence.

    Court’s Reasoning

    The court explained that under New York law, a defendant is guilty of selling a controlled substance when they knowingly and unlawfully sell a narcotic drug. The agency defense holds that if the defendant acted solely as the agent of the buyer, they cannot be convicted of the crime of criminal sale of a controlled substance. The court referenced People v. Molineux, which addressed the admissibility of evidence of uncharged crimes. Such evidence is generally inadmissible to show bad character or propensity to commit a crime, but it is admissible when relevant to an issue other than criminal disposition, such as intent. The Court of Appeals found that the defendant’s actions during cross-examination of the prosecution’s witnesses and the request for an agency charge raised the issue of intent. The trial court properly exercised its discretion in allowing evidence of the prior conviction after balancing its probative value against its potential prejudice.

    The court distinguished this case from situations where intent is easily inferred from the act itself, noting that the agency defense specifically disputes the intent to sell. The court relied on its previous holding in People v. Small, where Molineux evidence was deemed admissible when the defendant raised an agency defense. The court emphasized that there is no requirement that the court rule on the admissibility of the Molineux evidence prior to trial and reiterated that the agency defense is triggered where there is some evidence, however slight, supporting the inference that the defendant was acting as an extension of the buyer.

    Practical Implications

    This case reinforces that a defendant’s decision to pursue an agency defense in a drug sale case opens the door for the prosecution to introduce evidence of the defendant’s prior drug sale convictions to establish intent, even if the defense is based on evidence presented by the prosecution. This ruling highlights that the timing of the presentation of such evidence is within the trial court’s discretion. Defense attorneys must carefully consider the implications of raising the agency defense, understanding it may result in the introduction of prior bad acts evidence, and the possible prejudice to the client. It is important to carefully assess the strength of the prosecution’s case, as well as the potential prejudicial impact of prior bad acts evidence on the jury. Prosecutors should be prepared to present such evidence and should ensure they have a proper foundation established for the prior acts and that the probative value outweighs the prejudicial effect.

  • People v. Echevarria, Moss, and Johnson, 21 N.Y.3d 158 (2013): Public Trial Rights and Undercover Officer Testimony

    21 N.Y.3d 158 (2013)

    A trial court may close the courtroom to the public during the testimony of undercover officers if the prosecution demonstrates an overriding interest, such as officer safety, that is likely to be prejudiced by an open trial, and the closure is no broader than necessary, and the court considers reasonable alternatives to closure; however, the court need not explicitly state on the record that it considered alternatives.

    Summary

    These consolidated appeals concern courtroom closures during undercover officers’ testimony in buy-and-bust cases. The Court of Appeals held that limited closures comported with Sixth Amendment public trial principles because the officers demonstrated a specific link between their safety concerns and open-court testimony. The Court clarified that while trial courts must consider alternatives to closure, they are not always required to explicitly state this consideration on the record. One case was reversed due to an erroneous jury charge on the agency defense.

    Facts

    In Echevarria, the defendant sold crack cocaine to an undercover officer. The officer testified he remained active in the area, had pending cases, and had been threatened. In Moss, the defendant sold crack cocaine to an undercover officer who continued to work in the area after the arrest. The officer had been threatened and searched by suspects. In Johnson, the defendant sold crack cocaine to an undercover officer who remained active in the area. This officer had been threatened and physically attacked.

    Procedural History

    In all three cases, the trial courts held Hinton hearings to determine if the courtroom should be closed during the undercover officers’ testimony. All three courts ordered closure during the officers’ testimony, sometimes with exceptions for family. The Appellate Division affirmed the convictions in all cases. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the People demonstrated a sufficient likelihood of prejudice to an overriding interest to justify closing the courtroom during the testimony of the undercover officers.
    2. Whether the trial judge in each case failed to comply with the requirement that courts consider reasonable alternatives to closure.

    Holding

    1. Yes, because the officers demonstrated a specific link between their safety concerns and open-court testimony in the particular buy-and-bust case.
    2. No, because the record made no mention of alternatives but was otherwise sufficient to establish the need to close the particular proceeding, therefore it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest.

    Court’s Reasoning

    The Court relied on Waller v. Georgia, which requires the party seeking closure to advance an overriding interest likely to be prejudiced, the closure must be no broader than necessary, the trial court must consider reasonable alternatives, and it must make adequate findings to support the closure. The Court found the safety of law enforcement officers constitutes an overriding interest. However, there must be a specific link between the officer’s safety concerns and open-court testimony in the particular case.

    In Moss and Johnson, the officers demonstrated continued activity in the area of arrest, open cases, and prior threats, establishing this link.

    The Court emphasized that while trial courts must consider alternatives to closure, they need not always explicitly discuss them on the record. The Court reaffirmed its holding in People v. Ramos. Quoting Ramos, the court stated that “it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest” (Ramos, 90 NY2d at 503-504 [emphasis added]). The Court distinguished Presley v. Georgia, noting that in Presley, the record made clear that the trial judge’s exclusion of the public was unwarranted, and the space constraints could have been easily remedied using less intrusive measures.

  • People v. Watson, 19 N.Y.3d 252 (2012): Agency Defense Does Not Apply to Criminal Facilitation

    People v. Watson, 19 N.Y.3d 252 (2012)

    The agency defense, which can negate the “sale” element in a drug sale charge, does not extend to a charge of criminal facilitation because the facilitation statute focuses on aiding the commission of a crime, irrespective of whether the defendant acted as an agent of the buyer.

    Summary

    Tyrone Watson was charged with selling cocaine, facilitating the sale, and possessing narcotics after he assisted an undercover officer in purchasing drugs. At trial, Watson claimed he was acting as the agent of the buyer. The trial court acquitted him of the sale charge based on the agency defense but convicted him of facilitation and possession. The New York Court of Appeals held that the agency defense does not apply to criminal facilitation, emphasizing that facilitation focuses on aiding the commission of a crime and that the agency defense is only relevant to the element of “sale.” The court affirmed the conviction for criminal facilitation.

    Facts

    An undercover narcotics sergeant asked Tyrone Watson where he could find some “rock.” Watson made phone calls to locate cocaine. He then suggested they go to a specific location. The officer gave Watson $40. Watson introduced the officer to “JD Blue,” stating his companion wanted two bags of crack. Watson handed the money to Blue. Blue gave Watson the drugs, which Watson then passed to the officer. Watson was arrested and found to be in possession of cocaine and a crack pipe.

    Procedural History

    Watson was indicted for felony sale of a controlled substance, misdemeanor criminal possession of a controlled substance, and misdemeanor criminal facilitation. The trial court acquitted Watson of the sale count, applying the agency defense, but convicted him of criminal facilitation and possession. The Appellate Division affirmed the conviction. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the agency defense, successful in negating a charge of criminal sale of a controlled substance, also applies to a charge of criminal facilitation.

    Holding

    1. No, because the agency defense is specific to the “sale” element of a drug sale charge, whereas criminal facilitation focuses on aiding the commission of a crime, irrespective of the defendant’s role as an agent of the buyer.

    Court’s Reasoning

    The Court reasoned that criminal facilitation occurs when a person, believing they are aiding someone intending to commit a crime, engages in conduct that provides the means or opportunity for the commission of that crime. This statute assigns culpability to someone who knowingly aids a crime but lacks the mental culpability required for accomplice liability. The court emphasized the plain language of the statute, noting Watson brought the officer to the dealer and provided the dealer the opportunity to sell cocaine. The court stated, “the facilitation statute plainly was intended to cover the type of conduct engaged in by defendant: he brought the undercover officer to JD Blue and provided the dealer with the opportunity to intentionally sell cocaine, thereby aiding the commission of that felony.”

    The court distinguished criminal facilitation from the sale of controlled substances, noting that the agency defense is “a well-established interpretation of the statutory definition of the term ‘sell.’” Since “sale” is not an element of facilitation, the agency defense is inapplicable. Penal Law § 115.10 (3) specifically states the fact that defendant was neither an accomplice to the sale nor guilty of that crime does not provide a defense to facilitation.

    Furthermore, the Court highlighted the original purpose of the agency defense—to mitigate the harsh penalties of the Rockefeller Drug Laws by reducing a defendant’s culpability from a serious felony to a possessory offense. In Watson’s case, both facilitation and possession are misdemeanors, indicating a legislative calibration of punishment that does not necessitate the agency defense. The court added that “It would be incongruous to allow a facilitator, who clearly acts as the buyer’s conduit to the drug seller and actively participates in the consummation of the transaction, to escape all criminal liability as long as that person never touches the drugs.”

  • People v. Davis, 14 N.Y.3d 20 (2009): When Criminal Possession is Not a Lesser Included Offense of Criminal Sale

    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.

  • People v. Roche, 88 N.Y.2d 974 (1996): Agency Defense in Criminal Sale of Controlled Substance

    People v. Roche, 88 N.Y.2d 974 (1996)

    A jury instruction on the agency defense in a criminal sale of a controlled substance case is sufficient when it accurately conveys that the jury can consider any benefit received from the buyer as supportive of the defense.

    Summary

    The defendant was convicted of criminal sale of a controlled substance in the third degree for selling crack cocaine to an undercover officer. At trial, she argued an agency defense, claiming she bought the drugs on the officer’s behalf. She appealed, arguing the trial court’s charge to the jury on the agency defense was insufficient under People v. Andujas. The New York Court of Appeals affirmed the conviction, holding that the jury instruction was adequate because it correctly stated that the jury could consider any benefit received from the buyer when deciding if the defendant acted as the buyer’s agent.

    Facts

    The defendant sold two vials of crack cocaine to an undercover police officer.

    At trial, the defendant claimed the officer asked her to get crack for him and offered to “get her high.”

    She testified she bought four vials, kept two for herself, and expected to barter sex later for the officer providing her with crack.

    Procedural History

    The defendant was convicted of criminal sale of a controlled substance in the third degree.

    She appealed, arguing the trial court’s jury charge on the agency defense was insufficient.

    The Appellate Division affirmed the conviction, and the defendant appealed to the New York Court of Appeals.

    Issue(s)

    Whether the trial court erred in its jury instruction regarding the agency defense, specifically whether the instruction failed to adequately convey that any benefit received from the buyer could support the defense.

    Holding

    No, because the jury charge, taken as a whole, accurately instructed the jury that it could consider any benefit received from the buyer as supportive of the agency defense.

    Court’s Reasoning

    The Court of Appeals found no merit in the defendant’s argument that the trial court should have expanded its charge on the agency defense under People v. Andujas, 79 N.Y.2d 113.

    The court correctly instructed the jury that it could consider any benefit received from the buyer as supportive of an agency defense.

    The Court determined that, “in that context, the charge as a whole accurately provided the jury with the proper instruction (see, e.g., People v Fields, 87 N.Y.2d 821; People v Warren, 76 N.Y.2d 773).”

    The Court emphasized that the key is that the charge as a whole conveys the proper understanding of the law. It did not require a specific formulation beyond ensuring the jury understood that benefits from the buyer could support the defense.

  • People v. Herring, 83 N.Y.2d 781 (1994): Agency Defense Requires Evidence of Relationship with Buyer

    People v. Herring, 83 N.Y.2d 781 (1994)

    A defendant is entitled to an agency charge in a drug sale case only when there is a reasonable view of the evidence to support the theory that the defendant was acting solely on behalf of the buyer; mere ambiguity regarding the defendant’s connection to the seller is insufficient.

    Summary

    Herring was convicted of criminal sale and possession of a controlled substance. He requested an agency charge, arguing he acted solely as the buyer’s agent. The trial court denied this request, but the Appellate Division reversed. The Court of Appeals reversed the Appellate Division, holding that the evidence did not support an agency charge because there was no reasonable view of the evidence suggesting Herring acted solely on behalf of the buyer. The Court emphasized the necessity of demonstrating a relationship with the buyer, not simply ambiguities in the defendant’s connection to the seller, to warrant an agency charge.

    Facts

    An undercover police officer asked Herring, a stranger, if he had drugs for sale. Herring led the officer to a storefront, took money from him, and entered the building. Inside, Herring obtained four vials of cocaine from a codefendant and gave them to the officer. Herring then left the area and was later arrested. He was subsequently charged with criminal sale and criminal possession of a controlled substance.

    Procedural History

    At trial, Herring requested the court to instruct the jury on the agency defense, arguing that he was acting solely as an agent of the buyer. The trial court denied the request. The Appellate Division reversed, finding there was a factual issue regarding agency because Herring did not solicit customers and received nothing for his participation. The Court of Appeals then reversed the Appellate Division, remitting the case for consideration of the facts.

    Issue(s)

    1. Whether the evidence presented at trial was sufficient to warrant an agency charge to the jury.

    Holding

    1. No, because there was no reasonable view of the evidence to support the theory that Herring was acting solely on behalf of the buyer.

    Court’s Reasoning

    The Court of Appeals reasoned that an agency charge is only warranted when the evidence indicates a relationship with the buyer, not merely ambiguities about the defendant’s connection to the seller. The Court found that Herring’s actions, including immediately understanding the officer’s request and leading him to a nearby drug operation, were inconsistent with acting solely as the buyer’s agent. The Court noted that even if Herring received no compensation and did not solicit the sale, this did not automatically establish agency. The Court stated, “Before an agency charge is warranted, the evidence must be indicative of a relationship with the buyer not merely raise ambiguities about the defendant’s connection to the seller.” The Court emphasized that the jury could not reasonably conclude from the evidence that Herring was acting solely as an extension of the buyer. The Court also noted that Herring was convicted on an acting-in-concert theory, and the jury’s finding of guilt on that theory necessarily precluded the possibility of agency.

  • People v. Porpiglia, 71 N.Y.2d 896 (1988): Missing Witness Charge Requires Knowledge of Material Facts

    People v. Porpiglia, 71 N.Y.2d 896 (1988)

    A missing witness charge is warranted only when the uncalled witness possesses knowledge about a material issue in the case and would be expected to testify favorably to the opposing party.

    Summary

    Defendant Porpiglia was convicted of criminal sale of a controlled substance. He argued that the trial court erred in refusing to give a missing witness charge regarding a police informant who was present at the scene of the crime. The New York Court of Appeals affirmed the conviction, holding that the defendant failed to establish that the informant possessed knowledge about the critical conversations and observations relevant to the defendant’s agency defense. Thus, the defendant did not meet his burden to justify the missing witness charge.

    Facts

    State Trooper Jones, acting undercover, met Porpiglia at a tavern. Jones suggested to Porpiglia that he needed cocaine to go with his beer. Conflicting testimony arose as to whether Porpiglia readily offered to obtain cocaine for Jones or whether Jones badgered him into finding a source. Porpiglia ultimately led Jones to a house where Jones purchased cocaine. A police informant was with Jones at the tavern and accompanied Jones and Porpiglia to the location where the drugs were purchased.

    Procedural History

    Porpiglia was convicted of criminal sale of a controlled substance in the third degree. At trial, Porpiglia raised the defense of agency, arguing he was merely acting on behalf of Jones in procuring the cocaine. Porpiglia requested a missing witness charge, arguing the jury should infer that the informant’s testimony would be unfavorable to the prosecution because the prosecution failed to call the informant as a witness. The trial court refused to give the charge. The Appellate Division affirmed. The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the trial court erred in refusing to give a missing witness charge to the jury regarding the police informant who was present at the scene of the drug transaction.

    Holding

    No, because the defendant failed to establish that the informant possessed knowledge about the material facts of the case relevant to the defendant’s agency defense. Specifically, there was no evidence the informant overheard critical conversations between Jones and Porpiglia.

    Court’s Reasoning

    The Court of Appeals applied the established rule that a missing witness charge is appropriate when a party has peculiar power to produce a witness whose testimony would elucidate the transaction, and the party fails to do so. The court cited People v. Gonzalez, stating that the defendant seeking the charge must show that there is an uncalled witness knowledgeable about a material issue and that the witness would be expected to testify favorably to the opposing party. The court found Porpiglia failed to meet this burden. The court emphasized that the sole issue at trial was whether Porpiglia acted as an agent for Jones. While the informant was present at the tavern and accompanied Jones and Porpiglia to the location where the drugs were purchased, there was no evidence establishing that the informant was present during critical conversations concerning cocaine, such that he would have heard them or observed Porpiglia’s reactions and behavior. “Absent some foundation connecting the informant to the circumstances relevant to defendant’s agency defense, defendant has failed to sustain his initial burden, and the trial court properly denied the requested charge.” The court distinguished the case from situations where the missing witness directly observed the relevant events. The court reasoned that, without evidence of the informant’s knowledge of the specific interactions related to the drug purchase, the missing witness charge was not warranted. The court effectively requires a specific showing of the witness’s awareness of the events that form the basis of the claim or defense. The court also noted it considered defendant’s remaining contentions and found them to be without merit.

  • People v. Owens, 69 N.Y.2d 585 (1987): Improper to Submit Only Portions of Jury Charge in Writing Over Objection

    People v. Owens, 69 N.Y.2d 585 (1987)

    It is reversible error for a trial court to provide the jury with only selected portions of its jury charge in writing over the defendant’s objection, as it creates a risk of undue emphasis and prejudice.

    Summary

    The New York Court of Appeals held that it is improper for a trial court, over defense counsel’s objection, to distribute only selected portions of the jury charge in writing to the jury during deliberations. The Court reasoned that this practice creates a risk that the jury will place undue emphasis on the written portions, potentially prejudicing the defendant, especially when critical defenses are omitted. The Court reversed the convictions in both cases, ordering new trials, emphasizing the importance of fairness and impartiality in jury instructions.

    Facts

    In People v. Owens, an undercover officer allegedly purchased cocaine from the defendant. Owens raised the defense of agency, claiming he acted solely as the officer’s agent. The trial court provided the jury with written instructions only on the elements of the crimes charged, omitting the agency defense. In People v. Boon, the defendant was charged with attempted robbery. The court provided written instructions on accessorial liability, attempt, and robbery, but excluded instructions on the presumption of innocence and reasonable doubt. In both cases, defense counsel objected to the selective written instructions.

    Procedural History

    In Owens, the jury found the defendant guilty on all counts, and the Appellate Division affirmed. In Boon, the jury found the defendant guilty of one count of attempted robbery, and the Appellate Division affirmed. The New York Court of Appeals consolidated the appeals and reversed both convictions.

    Issue(s)

    1. Whether it is permissible for a trial court, over defense counsel’s objection, to submit only certain portions of the jury charge in writing to the jury for use during deliberations.

    Holding

    1. No, because submitting only a portion of the charge creates a risk that the jury will perceive the writing as embodying the more important instructions, inviting greater attention to the principles repeated in writing than those simply recited orally, potentially prejudicing the defendant.

    Court’s Reasoning

    The Court emphasized the importance of fairness and impartiality in jury instructions, citing People v. Odell, 230 N.Y. 481, 487: “The court’s charge is of supreme importance to the accused. It should be the safeguard of fairness and impartiality and the guarantee of judicial indifference to individuals.” The Court noted the absence of statutory authorization for submitting written jury instructions and drew parallels to CPL 310.30, which requires the consent of both parties before providing jurors with copies of a statute. The court reasoned that selectively providing portions of the charge, especially without any jury request for clarification, risks undue emphasis on the written portions. This could lead jurors to believe that the written instructions are more important, subordinating the oral instructions, particularly those favorable to the defense. The court found this error to be prejudicial and not subject to harmless error analysis, thus requiring a new trial in both cases. The court reasoned that unlike the marshaling of evidence—which is statutorily authorized (CPL 300.10 [2]), and constitutes error only when an imbalance results in prejudice to defendant—the distribution of written instructions to the jury is not expressly authorized by law, and error in such submissions cannot be deemed harmless.

  • People v. Roche, 45 N.Y.2d 78 (1978): Establishing Agency Defense in Drug Sales

    People v. Roche, 45 N.Y.2d 78 (1978)

    In a prosecution for the sale of a controlled substance, a defendant is entitled to a jury instruction on the agency defense if there is a reasonable view of the evidence to suggest they acted solely as the buyer’s agent, without any independent commercial interest in promoting the transaction.

    Summary

    Roche was convicted of criminal sale of a controlled substance. At trial, he requested a jury instruction on the agency defense, arguing he acted solely as the buyer’s agent. The trial court denied the request, but the Court of Appeals reversed, holding that Roche’s testimony presented a reasonable view of the evidence supporting the agency defense. The court emphasized that if Roche procured the drugs solely to accommodate a friend without any profit motive, he acted as an agent, and the jury should have been instructed accordingly. The indictment charging a sale to a specific person does not preclude an agency defense based on transferring the substance to another individual. Thus, the failure to charge agency was reversible error.

    Facts

    Undercover Officer Fargione and informant Bowe went to Roche’s apartment to buy cocaine, pre-arranged by phone calls between Roche and Bowe. According to the prosecution, Roche handed Bowe an envelope containing cocaine. Bowe took some, added flour, and gave the rest to Fargione. Fargione tried to pay Roche, but Roche directed the money to Bowe, who then gave it to Roche.

    Roche testified that Bowe repeatedly asked him to get cocaine. Roche procured one gram for $125 as a favor, making no profit and having no interest in the transaction. He gave the cocaine to Bowe, who added flour, and Bowe paid him in Fargione’s absence. Roche stated this was the first time he had ever procured cocaine for another.

    Procedural History

    Roche was convicted of criminal sale of a controlled substance in the third degree. He appealed, arguing the trial court erred in refusing to instruct the jury on the agency defense. The Appellate Division affirmed the conviction. Roche then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the trial court erred in refusing to instruct the jury on the agency defense, given Roche’s testimony suggesting he acted solely as an agent for the buyer.

    Holding

    Yes, because Roche’s testimony provided a reasonable view of the evidence that he acted solely to accommodate a friend (Bowe) without any commercial interest in promoting the transaction, thus entitling him to a jury instruction on the agency defense.

    Court’s Reasoning

    The Court of Appeals emphasized that the agency defense applies when a defendant acts solely as the buyer’s alter ego in procuring drugs. If there is a reasonable view of the evidence supporting the claim that the defendant acted as an instrumentality of the buyer, the court must instruct the jury on the agency defense. The court stated, “In this case, failure to grant defendant’s timely request to charge agency constitutes reversible error. Defendant’s testimony raised the question of whether he simply purchased and delivered a small quantity of drugs solely to accommodate a friend without any commercial interest in promoting the transaction — the quintessential agency relationship.”

    The court dismissed the argument that the transfer of drugs from Bowe to Fargione invalidated the agency defense, stating that under Roche’s version of the facts, these were two distinct transactions. The court also rejected the argument that the indictment charging a sale to Fargione precluded the agency defense. The court stated, “The corpus delicti of the crime charged was the transfer of a controlled substance (Penal Law, § 220.00, subd 1); the person to whom that substance was transferred was immaterial to this conviction.” The court noted that denying the agency defense in this circumstance would be “tantamount to a ruling that the transfer constituted a sale as a matter of law without putting the People to their burden of disproving an agency relationship.” The court concluded that the People cannot deprive a defendant of the agency defense by charging them with a sale to whomever ultimately obtains the drugs.

  • People v. Argibay, 45 N.Y.2d 45 (1978): Preservation of Error and Appellate Review

    People v. Argibay, 45 N.Y.2d 45 (1978)

    To preserve an issue for appellate review, a party must make a specific objection or request at the time of the alleged error; otherwise, the appellate court has discretion to review the unpreserved error.

    Summary

    The New York Court of Appeals addressed whether the defendant preserved the argument of entitlement to an agency defense instruction for appellate review after being convicted of sale and possession of controlled substances. The Court of Appeals found that the defendant failed to properly preserve the issue because defense counsel did not request the agency defense instruction, mention it in summation, or object to its omission in the court’s charge. Therefore, the court reversed the Appellate Division’s order and remitted the case to allow the Appellate Division to decide whether to exercise its discretionary power to review the unpreserved claim.

    Facts

    The defendant was on trial for the sale and possession of controlled substances. The defendant’s attorney made reference to the possibility of establishing an agency defense during arguments regarding cross-examination limits should the defendant testify. However, at the close of evidence, the defense attorney did not request an agency defense instruction, mention it in their summation, or object to the judge’s failure to include it in the charge to the jury.

    Procedural History

    The defendant was convicted in the trial court. The Appellate Division reversed, holding that the issue was preserved and the failure to charge agency constituted reversible error. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the defendant preserved the argument that they were entitled to an agency defense instruction for appellate review by failing to request the instruction, mention it in summation, or object to its omission from the court’s charge.

    Holding

    No, because the defendant did not register a protest to the omission to charge with respect to the agency defense and therefore failed to preserve the error for appellate review.

    Court’s Reasoning

    The Court of Appeals held that the defendant failed to preserve the issue for appellate review. The court emphasized that the defendant’s initial reference to the agency defense during arguments about cross-examination was insufficient to preserve the issue. To properly preserve an issue, a party must make a specific request or objection at the time of the alleged error. Because the defendant did not request the instruction, mention it in summation, or object to its omission, the issue was not preserved. The court relied on the principle that appellate courts generally do not review errors that were not brought to the trial court’s attention. The court remitted the case to the Appellate Division to determine whether to exercise its discretionary power to review the defendant’s claim of reversible error despite the lack of preservation, referencing People v. Cona, 49 NY2d 26, 33-34. The Court of Appeals underscored that it is the responsibility of the parties to raise issues at the trial level to allow the court an opportunity to correct any errors. The court’s decision highlights the importance of proper and timely objections in preserving issues for appeal.