People v. Magee, 263 A.D.2d 763 (N.Y. App. Div. 1999). · Go Syfert
People v. Magee, 263 A.D.2d 763 (N.Y. App. Div. 1999). Cases Citing This Book View Copy Cite
24 citation events (20 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Bautista (nyappdiv, 2017-02-23)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Bautista
N.Y. App. Div. · 2017 · confidence medium
However, the victim was thoroughly cross-examined on these inconsistencies and they presented “classic credibility issue [s],” which the jury plainly resolved against defendant (People v Roach, 263 AD2d 763, 763 [1999], lv denied 93 NY2d 1045 [1999]; see People v Cridelle, 112 AD3d 1141, 1143 [2013]; People v Allen, 13 AD3d 892, 894 [2004], lv denied 4 NY3d 883 [2005]).
discussed Cited as authority (rule) People v. Monykuc
N.Y. App. Div. · 2012 · confidence medium
“The policy underpinning the defense is that persons who purchase or possess drugs, including those acting on their behalf, warrant less severe criminal liability than those who sell them” (People v Magee, 263 AD2d 763, 765 [1999]; see People v Davis, 14 NY3d 20, 24 [2009]).
discussed Cited as authority (rule) People v. Monykuc
N.Y. App. Div. · 2012 · confidence medium
“The policy underpinning the defense is that persons who purchase or possess drugs, including those acting on their behalf, warrant less severe criminal liability than those who sell them” (People v Magee, 263 AD2d 763, 765 [1999]; see People v Davis, 14 NY3d 20, 24 [2009]).
discussed Cited as authority (rule) People v. Hunt (2×) also: Cited "see"
N.Y. App. Div. · 2008 · confidence medium
At best, he was an intermediary and, thus, the agency defense was not implicated (see People v Magee, 263 AD2d at 765).
discussed Cited as authority (rule) People v. Stephens
N.Y. App. Div. · 2006 · confidence medium
To the extent that he contends that the failure to secure such a jury instruction constitutes the ineffective assistance of counsel, we are of the opinion that no reasonable view of the evidence presented would support a claim that “defendant, in selling narcotics, was acting ‘solely on behalf of the buyer such as to be a mere extension or instrumentality of the buyer’ ” (People v Magee, 263 AD2d 763, 765 [1999], quoting People v Ortiz, supra at 449).
discussed Cited as authority (rule) People v. Rosado
N.Y. App. Div. · 2004 · confidence medium
As this issue cannot be decided without knowing the content of the psychiatric records—which were not put in evidence at trial—we disagree with County Court that defendant could have raised this issue on direct appeal and hold that it has been properly raised by the CPL 440.10 motion herein (see People v Magee, 263 AD2d 763, 766 [1999]).
discussed Cited as authority (rule) People v. Allen (2×) also: Cited "see"
N.Y. App. Div. · 2004 · confidence medium
In considering defendant’s contention, we view the evidence in a neutral light and, finding that a contrary verdict would not have been wholly unreasonable, we make our own determination of the relative probative force of the conflicting testimony and the value of the inferences which may be drawn from the testimony (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Wood, 299 AD2d 739, 741, 744 [2002], lv denied 99 NY2d 621 [2003]; People v Roach, 263 AD2d 763, 763 [1999], lv denied 93 NY2d 1045 [1999]).
discussed Cited as authority (rule) People v. Brown
N.Y. App. Div. · 2004 · confidence medium
The conclusory assertions in defendant’s pro se motion papers failed to contain sworn allegations of fact (see CPL 440.30 [1], [4]), are not substantiated by the record and defendant never alleged facts dehors the record (cf. CPL 440.10 [2] [c]; People v Hemingway, 306 AD2d 689 [2003]; People v Magee, 263 AD2d 763, 766 [1999]).
discussed Cited as authority (rule) People v. Morey
N.Y. App. Div. · 2003 · confidence medium
Despite defendant’s assertions that the victim’s testimony is not credible because she is allegedly an alcoholic and consumed a large quantity of alcohol prior to the attack, we conclude that the victim’s testimony is not “so unworthy of belief as to be incredible as a matter of law” (People v Roach, 263 AD2d 763, 763 [1999], lv denied 93 NY2d 1045 [1999] [internal quotation marks omitted]).
discussed Cited "see" People v. Nowlan
N.Y. App. Div. · 2015 · signal: see · confidence high
“A trial court must grant a request for an agency charge when, viewed in the light most favorable to the defendant, some evidence, however slight[,] supports the inference that the [defendant] was acting, in effect, as an extension of the buyer” (People v Monykuc, 97 AD3d 900, 902 [2012] [internal quotation marks, citations, brackets and ellipsis omitted]; see People v Magee, 263 AD2d 763, 765 [1999]).
discussed Cited "see" People v. Delaney
N.Y. App. Div. · 2003 · signal: see · confidence high
In determining whether to charge the agency defense to the jury, a “trial court [is] required to view the trial evidence in the light most favorable to the defendant and to give the instruction if ‘some evidence, however slight * * * support [s] the inference that the supposed agent was acting, in effect, as an extension of the buyer’ ” (People v Ortiz, 76 NY2d 446, 448 [1990], amended 77 NY2d 821 [1990], quoting People v Argibay, 45 NY2d 45, 55 [1978], cert denied 439 US 930 [1978]; see People v Magee, 263 AD2d 763, 765 [1999]).
discussed Cited "see" People v. Norman
N.Y. App. Div. · 2000 · signal: see · confidence high
The availability of the defense “turns on whether, under all the circumstances, the defendant can be said to have acted solely on behalf of the buyer such as to be a mere extension or instrumentality of the buyer” (People v Ortiz, 76 NY2d 446, 449; see, People v Magee, 263 AD2d 763, 765 ).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Edward C. Magee
Appellate Division of the Supreme Court of the State of New York.
Jul 22, 1999.
263 A.D.2d 763
1999 N.Y. App. Div. LEXIS 8267
Mikoll.
Cited by 10 opinions  |  Published
Mikoll, J. P.

Defendant’s principal contention on this appeal is that[*764] County Court erred in denying his request to instruct the jury on the agency defense in connection with his sales of controlled substances to an undercover State Police investigator.

On September 16, 1997, State Police Investigators Cheryl Sickler and Michael Franz, engaged in undercover narcotics operations, were seated in their vehicle parked on West Clinton Street in the City of Ithaca, Tompkins County. When Sickler rolled down her window, defendant approached and Sickler asked him whether an individual named “Ready” was around. Defendant replied that he was not, but asked, “What do you need?” Sickler stated that she wanted a “twenty”, denoting a $20 packet of crack cocaine. Defendant responded that he could provide that, as well as Valium and Percocet, but would have to be first driven to his home. When Sickler asked defendant if he was working with the police, he said, “No, this is hów I make my money.” Just then, a man on a bicycle appeared on the scene. Telling the officers to wait, defendant walked off a short distance and conversed with the bicyclist. He then returned to the car and handed Sickler a packet containing crack cocaine, and Sickler gave him $20. Defendant then offered her Percocet at $2 per pill, and Sickler gave him an additional $20 for 10 pills (although she received only nine).

Defendant’s trial strategy centered exclusively upon an agency defense. His account of the events was essentially the same as Sickler’s, except as to the source of the Percocet.* Defendant testified that he had been addicted to crack cocaine since 1989 and had committed numerous crimes directly or indirectly related to his addiction. While denying that he sold drugs, he admitted that he frequently obtained either drugs or money for their purchase through various schemes, including selling fake drugs, and holding himself out as a dealer long enough to obtain money from prospective purchasers, promising to return with drugs, but disappearing thereafter. As to the transaction with Sickler, defendant said that his original intent was to take her money and vanish without producing any drugs. He changed his plan upon the arrival of the bicyclist, from whom he had purchased drugs on numerous prior occasions. He testified that he gave Sickler the cocaine and Percocet in exchange for $40, which he thereafter turned over to the bicyclist. Although he ultimately received nothing from the transaction, he testified that he expected that the bicyclist would give him something for the business, and lamented that he had “worked for him for nothing”.

[*765] An agency defense must be submitted to the jury if any reasonable view of the evidence, considered in the light most favorable to the defendant, supports the conclusion that the defendant, in selling narcotics, was acting “solely on behalf of the buyer such as to be a mere extension or instrumentality of the buyer” (People v Ortiz, 76 NY2d 446, 449; see, People v Argibay, 45 NY2d 45, 55). The policy underpinning the defense is that persons who purchase or possess drugs, including those acting on their behalf, warrant less severe criminal liability than those who sell them. Consequently, availability of the defense hinges entirely on the relationship between the defendant and the buyer, and whether the circumstances of the transaction indicate that defendant’s involvement in the crime was solely for the accommodation of the buyer (see, People v Herring, 83 NY2d 780, 782; People v Smith, 247 AD2d 781).

We agree with County Court’s determination that the agency charge was not warranted here. No reasonable view of the trial evidence supported a finding that defendant’s involvement in the crimes stemmed solely from his desire to accommodate Sickler, with whom he had no prior acquaintance. While the conversation was initiated by Sickler’s inquiry about “Ready”, defendant followed up on his response by asking what the officer desired, and offering to supply it. By his own admission, defendant’s intent was not to accommodate Sickler but to “scam” her out of her money. When his plans changed upon the arrival of the bicyclist, he obtained the drugs and passed them on to Sickler with the expectation that he would be compensated for his efforts by the dealer. Even when viewed in the light most favorable to defendant, and accepting his testimony as to the source of the Percocet, the evidence was insufficient as a matter of law to require the agency charge. At best, the evidence established that defendant, serving only his own interests, acted as an intermediary between Sickler and the bicyclist, a showing insufficient to implicate an agency charge (see, People v Herring, supra, at 782, People v Argibay, supra, at 53).

Defendant’s remaining contentions do not warrant extended discussion. The claim that he was denied effective assistance of counsel because his attorney conceded the issue of identification and the voluntariness of certain oral statements, and elicited testimony about defendant’s prior criminal history outside the Sandoval ruling, is without merit. The very essence of the defense strategy was to admit the charged conduct but seek to avoid culpability therefor by invoking the agency defense. What defendant now labels as deficiencies of trial[*766] counsel were tactical decisions fully consistent with, and in furtherance of, that trial strategy. Moreover, as the People did not seek to introduce the statements in question, no prejudice to defendant resulted (see, People v Frascatore, 200 AD2d 860, 861). Defendant further contends that he was substantially prejudiced by counsel’s failure to heed his continued pleas to proffer a psychiatric defense. To the extent this claim rests on alleged conversations between defendant and his former attorneys, these matters are dehors the record and would ordinarily be more appropriately raised in a CPL 440.10 motion (see, People v Garcia, 187 AD2d 868, lv denied 81 NY2d 885). We observe, however, that any such claim may be seriously compromised by defendant’s trial testimony that the events of the crime date were “very clear” and his disavowal of the contents of a pretrial affidavit wherein he claimed to be psychotic at the time of the crime.

Mercure, Crew III, Yesawich Jr. and Carpinello, JJ., concur. Ordered that the judgment is affirmed.

Defendant claimed that he obtained both drugs from the bicyclist while the People maintained that the Percocet was already in defendant’s possession and came from a prescription given to his aunt.