People v. Lam Lek Chong, 45 N.Y.2d 64 (1978)

A defendant is not entitled to an agency defense jury instruction in a drug sale case when the defendant facilitates a large drug transaction with the expectation of receiving a substantial benefit and the buyers intend to resell the drugs.

Summary

Lam Lek Chong was convicted of selling heroin. At trial, he claimed he acted as an agent for undercover officers, not as a seller. The trial court instructed the jury that he could only be considered an agent if he acted “purely gratuitously.” The Court of Appeals held that while the trial court’s jury instruction was erroneous, the error was harmless because Chong was not entitled to an agency charge as a matter of law, given his involvement in a large drug sale and expectation of profiting from it. The court clarified the scope of the agency defense in drug sale cases, emphasizing that it is not available when the defendant stands to benefit substantially from the transaction.

Facts

Undercover officers met Chong at his travel agency, posing as narcotics dealers interested in investing in heroin. Chong introduced them to potential suppliers and discussed smuggling options. Over several months, Chong arranged meetings and negotiations for large heroin purchases, including a trip to Hong Kong that ultimately failed. Later, Chong arranged for the officers to purchase a pound and a half of heroin. He led an officer to an apartment, retrieved the drugs, and handed them over in exchange for money. Chong admitted to facilitating the drug sale but claimed he was acting as an agent for the buyers, hoping for future business loans from them.

Procedural History

Chong was indicted for criminal sale of a controlled substance in the first degree. At trial, he claimed to be an agent of the buyers. He was convicted. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

Issue(s)

Whether the trial court erred in instructing the jury that the defendant could only be considered an agent of the buyers if he acted “purely gratuitously.”

Whether, based on the defendant’s own admissions, he was entitled to an agency defense instruction.

Holding

No, the trial court’s jury instruction was erroneous, but the error was harmless because the defendant was not entitled to an agency charge. Yes, because on Chong’s own testimony, a jury could not reasonably find him to be merely an agent.

Court’s Reasoning

The court acknowledged the “agency defense,” which states that someone acting solely as a buyer’s agent cannot be convicted of selling narcotics. This defense is rooted in interpreting the statutory definition of “sell” to align with the legislative intent of differentiating between buyers and sellers, except in the largest sales. The court clarified that the agency defense is not a complete defense but a means of determining the intermediary’s culpability. The court emphasized that it is generally a factual question for the jury to decide whether the defendant acted solely as the buyer’s agent, considering factors like the relationship between the parties, who initiated the purchase, prior drug dealings, and whether the defendant profited from the transaction.

The court found that the trial court erred in charging that the defendant could not be an agent if he received any benefit, “however slight.” However, the court held that the error was harmless because Chong was not entitled to an agency charge. Chong admitted to arranging a large drug sale, hoping for substantial business loans from the buyers, who intended to resell the drugs. The court reasoned that “the defendant admitted that he was an intermediary between drug merchants and intended to profit, at least collaterally, from the delivery of the drugs and therefore from the commercial traffic in drugs generally.” Therefore, “on no reasonable view could a jury have found defendant to be merely an agent.”

The court noted that because the quantity of drugs involved triggered the A-1 felony statute, the legislature intended the statute to apply literally. Anyone possessing that quantity of narcotics drugs intends to resell them and is just as culpable as the seller from whom he purchased them.