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Circumstances dictate whether one is a buyer or a seller of drugs


The defendant has been convicted of criminal sale of a controlled substance in the first degree (Penal Law, § 220.43) for allegedly selling a pound and a half of heroin to two undercover police officers in Manhattan. At the trial the defendant denied selling the drugs and testified instead that he had simply acted as the agent of the buyers, by locating a seller and helping the officers complete the purchase.

On this appeal the defendant claims that the trial court erred in charging the jury that he could only be considered an agent of the buyers if he acted “purely gratuitously” and that if he received “any benefit, however slight, from having participated in the transaction, he would not be an agent (of the buyers), but a seller.” The prosecutor takes the position that the defendant was not prejudiced by the charge because the evidence, particularly the defendant’s own admissions at the trial, conclusively shows that he was not acting solely as an agent of the buyers. The People also urge that the so-called “agency defense” has been interpreted too broadly by the Appellate Divisions and should either be abandoned or applied only to a narrow class of cases.

The indictment charging the defendant with selling heroin to two undercover police officers on May 30, 1974 was the result of a joint State and Federal narcotics investigation which had begun in January of that year.

The Court of Appeals affirmed the ruling of the Appellate Divisions.

The court stated that the determination as to whether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the jury to resolve on the circumstances of the particular case. Among other things the jury may consider the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction. But basically the jury must rely on its own common sense and experience to determine whether, under the circumstances, the defendant was in fact accommodating a friend or was simply a streetwise peddler attempting to avoid the penalties for sale. Of course the accommodation buyer is not uncommon and the average person, including the juror, should be able to perceive “the reality of the situation * * * without minutely detailed analysis” or instruction from the court. There is no legal formula for determining the defendant’s intent at the time of the drug transfer.

Thus the jury may find that the defendant who frequently or regularly purchased drugs for other persons from the same seller was allied with the seller. But even though the defendant may admit the other purchases the jury should not be precluded from finding, as a matter of fact, that he was in the habit of doing favors and acted solely on the buyer’s behalf at the time of the sale.

Similarly the fact that the defendant anticipated or received a profit from the sale may be sufficient to establish his intent to sell at the time of the transfer. But it is not unlikely that the buyer, who has obtained drugs with the aid of the defendant, will offer the defendant a share, a tip or reimbursement for expenses as a token of friendship or appreciation for the favor. This frequently happens when the buyer has purchased the drugs or marihuana for consumption and the defendant shares his tastes or is himself an addict. Of course receipt of any benefit, particularly a substantial reward promised in advance may be sufficient, as a matter of fact, to show that the defendant did not act solely to accommodate the buyer. But receipt of some incidental benefit, does not necessarily or even ordinarily alter the relationship between the parties, the nature of the transaction or the defendant’s culpability.

Thus the court erred in charging the jury that they could not find that the defendant acted as an agent of the buyer if he received any benefit however slight. The error however does not call for reversal because on this record the defendant was not entitled to an agency charge.

This is not a case where the defendant simply purchased and delivered a small quantity of drugs solely to accommodate a friend, without any commercial interest in promoting a sale. Here the defendant admitted at trial that he had arranged a large drug sale and hoped to receive a substantial benefit in the form of business loans from the grateful buyers. The transaction in fact was completely commercial since the buyers themselves obviously did not intend to consume one and a half pounds of heroin, and indeed, the defendant admitted that they had informed him that they were drug dealers who intended to obtain the drugs for resale. Thus 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. Realistically, by his own admissions, the defendant could only be considered one of the drug merchants or sellers for whom the Legislature has reserved the most severe penalties. On his own testimony, despite his protestations, it is concluded, as a matter of law, that on no reasonable view could a jury have found defendant to be merely an agent.

Stephen Bilkis and Associates with its New York Heroin Lawyers has handled and resolved favorably similar cases discussed above. It has offices located within New York Metropolitan area, including Corona, New York.

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