agency defense in New York

2020Under the agency doctrine[*2], "a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer" ( People v Watson , 20 NY3d at 185 [internal quotation marks and citation omitted]; accord People v Kramer , 118 AD3d 1040, 1041 [2014]; People v Vickers , 168 AD3d at 1270). "[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the [trier of fact] to resolve on the circumstances of the particular case" ( Peo

2019"Under the agency doctrine, a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer[,] . . . [which] is generally a factual question for the jury to resolve on the circumstances of the particular case" ( People v Peterkin , 135 AD3d 1192, 1192 [2016] [internal quotation marks and citations omitted]; see People v Lam Lek Chong , 45 NY2d 64, 73 [1978], cert denied 439 US 935 [1978]; People v Jones , 77 AD3d 1170, 1172 [2010], lv denied 16 NY3d 896 [2011]).

2021Thus, defendant was not entitled to an agency instruction because there is no reasonable interpretation of the evidence, even when viewed in the light most favorable to him, under which he acted " solely to accommodate the buyer" ( People v Feldman , 50 NY2d 500, 503 [1980] [emphasis added]; see Roche , 45 NY2d at 83 ; Rose , 58 AD3d at 544-545 ; People v Hunt , 50 AD3d 1246, 1248 [3d Dept 2008], lv denied 11 NY3d 789 [2008]).

2017Therefore, under the agency defense, “one who acts solely as the agent of a purchaser of narcotics cannot be convicted of the crime of criminal sale of a controlled substance” (People v Roche, 45 NY2d 78, 81 [1978]).

2021Unless some reasonable view of the evidence supports the theory that defendant was acting only on behalf of the buyer, the jury need not be instructed on the agency defense" ( People v Herring , 83 NY2d 780, 782 [1994] [citations omitted]).

2021The court correctly declined to deliver an agency defense regarding the third-degree possession count, which was based on intent to sell, because there was no reasonable view of the evidence, viewed most favorably to defendant, to support such a charge ( see People v Herring , 83 NY2d 780, 782 [1994]).

2016Viewing the proof in the light most favorable to defendant, as we must (see People v Delaney, 309 AD2d 968, 970 [2003]), there was no reasonable view of the evidence that supported a possible finding of the agency defense (see People v Herring, 83 NY2d 780, 782-783 [1994]; People v Ortiz, 76 NY2d at 449-450 ; People v Hamilton, 135 AD3d 500, 501 [2016]).

2013However, this instruction essentially stated the principle that the agency defense is limited to “one who acts solely as an agent for a buyer” (People v Ortiz, 76 NY2d 446, 449 [1990] [emphasis added]), and it did not contradict the principles, thoroughly explained to the jury both before and after the instruction at issue, that “whether a particular defendant has acted only as an agent for the buyer is a factual question for the jury, which may consider [various] factors” (id.), and that “the receipt of an incidental benefit does not in itself negate an agency defense” (People v Echevarria, 2

2019This account, if credited, would establish that defendant was acting as the agent of the seller , which does not support an agency defense ( see People v Argibay , 45 NY2d 45, 50 [1978] cert denied sub nom.

2012In three cases decided on the same day as Lam Lek Chong , we further explained that an agency defense (1) must be charged to the jury if any reasonable view of the evidence supports it (see People v Roche, 45 NY2d 78, 86 [1978], cert denied 439 US 958 [1978]); (2) cannot be used by a person who acts “at the very least as a middleman or a broker for his supplier” (People v Argibay, 45 NY2d 45, 50 [1978], cert denied sub nom.

2021"Under the agency doctrine, 'a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer'" ( People v Bickham , 189 AD3d 1972, 1973 [2020], lv denied ___ NY3d ___ [Mar. 2, 2021], quoting People v Watson , 20 NY3d 182, 185 [2012]).

2020Under the agency doctrine[*2], "a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer" ( People v Watson , 20 NY3d at 185 [internal quotation marks and citation omitted]; accord People v Kramer , 118 AD3d 1040, 1041 [2014]; People v Vickers , 168 AD3d at 1270). "[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the [trier of fact] to resolve on the circumstances of the particular case" ( Peo

2016“Under the agency doctrine, ‘a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer’ ” (People v Kramer, 118 AD3d 1040 , 1041 [2014], quoting People v Watson, 20 NY3d 182, 185 [2012] [internal quotation marks and citation omitted]; see People v Echevarria, 21 NY3d 1, 20 [2013]). “[W]hether 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”

2015“Under the agency doctrine, ‘a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer’ ” (People v Kramer, 118 AD3d 1040 , 1041 [2014], quoting People v Watson, 20 NY3d 182, 185 [2012] [citation omitted]; see People v Echevarria, 21 NY3d 1, 20 [2013]).

2020Under the agency doctrine[*2], "a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer" ( People v Watson , 20 NY3d at 185 [internal quotation marks and citation omitted]; accord People v Kramer , 118 AD3d 1040, 1041 [2014]; People v Vickers , 168 AD3d at 1270). "[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the [trier of fact] to resolve on the circumstances of the particular case" ( Peo

2019"Under the agency doctrine, a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer[,] . . . [which] is generally a factual question for the jury to resolve on the circumstances of the particular case" ( People v Peterkin , 135 AD3d 1192, 1192 [2016] [internal quotation marks and citations omitted]; see People v Lam Lek Chong , 45 NY2d 64, 73 [1978], cert denied 439 US 935 [1978]; People v Jones , 77 AD3d 1170, 1172 [2010], lv denied 16 NY3d 896 [2011]).

2012Upon our review of that charge “as a whole against the background of the evidence produced at the trial” (People v Andujas, 79 NY2d 113, 118 [1992]; see People v Waldriff, 46 AD3d 1448, 1448 [2007], lv denied 9 NY3d 1040 [2008]), we conclude that “[t]he charge properly conveyed the agency defense to the jury” (People v Schiano, 198 AD2d 820, 820 [1993], v denied 82 NY2d 930 [1994]).

2012Upon our review of that charge “as a whole against the background of the evidence produced at the trial” (People v Andujas, 79 NY2d 113, 118 [1992]; see People v Waldriff, 46 AD3d 1448, 1448 [2007], lv denied 9 NY3d 1040 [2008]), we conclude that “[t]he charge properly conveyed the agency defense to the jury” (People v Schiano, 198 AD2d 820, 820 [1993], v denied 82 NY2d 930 [1994]).

2022The verdict rejecting defendant's agency defense was based on legally sufficient evidence and was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342, 348-349 [2007]).

2020In addition, viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v Danielson , 9 NY3d 342, 349 [2007]), we conclude that County Court, in rejecting the agency defense with respect to the first two crimes, did not fail to give the evidence the weight it should be accorded ( see People v Walker , 117 AD3d 1441 , 1442 [4th Dept 2014], lv denied 23 NY3d 1044 [2014]; People v Watkins , 284 AD2d 905, 906 [4th Dept 2001], lv denied 96 NY2d 943 [2001]), and that the verdict with respect to all of the crimes is not against the weight of the evidence ( see gene

2020In addition, viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v Danielson , 9 NY3d 342, 349 [2007]), we conclude that County Court, in rejecting the agency defense with respect to the first two crimes, did not fail to give the evidence the weight it should be accorded ( see People v Walker , 117 AD3d 1441 , 1442 [4th Dept 2014], lv denied 23 NY3d 1044 [2014]; People v Watkins , 284 AD2d 905, 906 [4th Dept 2001], lv denied 96 NY2d 943 [2001]), and that the verdict with respect to all of the crimes is not against the weight of the evidence ( see gene

2012“It cannot be said that, in rejecting the agency defense, the jury failed to give the evidence the weight it should be accorded” (People v Watkins, 284 AD2d 905, 906 [2001], lv denied 96 NY2d 943 [2001]).

2017In People v Small ( 12 NY3d 732 [2009]), a case in which the defendant did not present any defense witnesses, this Court held that, in response to the defendant’s attempt to establish an agency defense during the People’s case, the lower court “did not abuse its discretion in permitting the People to present Molineux evidence” on the issue of intent (id. at 733).

2017It is well settled that a defendant who asserts an agency defense opens himself or herself up to the presentation of Molineux evidence to refute such defense (see People v Small, 12 NY3d 732, 733 [2009]; People v Mitchell, 112 AD3d 1071 , 1073 [2013], lv denied 22 NY3d 1140 [2014]; People v Nealon, 36 AD3d 1076, 1078 [2007], lv denied 8 NY3d 988 [2007]; People v Ortiz, 259 AD2d 979, 980 [1999], lv denied 93 NY2d 1024 [1999]).

2012Moreover, this case does not come within the narrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662 [1988]), because there was nothing in the plea allocution that cast doubt on defendant’s guilt or raised an agency defense.

2003Where facts implicating the agency defense are raised, a court may not accept the plea without first conducting further inquiry to assure that the defendant is aware of the possible defense and decides to plead despite its existence, thus assuring that the waiver of the defense is intelligent and voluntary (see People v Mosher, 222 AD2d 1034, 1035 [1995]; People v Davis, 176 AD2d 1236, 1237 [1991]; see also People v Lopez, 71 NY2d 662, 666 [1988]; People v Ocasio, 265 AD2d 675, 677 [1999]).

2017It is well settled that a defendant who asserts an agency defense opens himself or herself up to the presentation of Molineux evidence to refute such defense (see People v Small, 12 NY3d 732, 733 [2009]; People v Mitchell, 112 AD3d 1071 , 1073 [2013], lv denied 22 NY3d 1140 [2014]; People v Nealon, 36 AD3d 1076, 1078 [2007], lv denied 8 NY3d 988 [2007]; People v Ortiz, 259 AD2d 979, 980 [1999], lv denied 93 NY2d 1024 [1999]).

2015It is well established that a defendant opens the door to Molineux evidence by asserting an agency defense (see People v Mitchell, 112 AD3d at 1073; People v Nealon, 36 AD3d 1076, 1078 [2007], lv denied 8 NY3d 988 [2007]; People v Ortiz, 259 AD2d 979, 980 [1999], lv denied 93 NY2d 1024 [1999]), and any potential prejudice was mitigated by the court’s timely and proper limiting instructions (see People v Small, 12 NY3d 732, 733 [2009]).

2009During the allocution, however, the defendant, who was not asked if defense counsel had explained possible defenses to her, gave an account of the crime that raised the possibility of an agency defense (see People v Lam Lek Chong, 45 NY2d 64, 74 [1978], cert denied 439 US 935 [1978]; People v Sierra, 45 NY2d 56, 58-59 [1978]).

1999In fact, the agency defense is applicable to the charge of possession with the intent to sell, since the agent’s claim that he was possessing drugs on behalf of another would, if believed, negate the intent to sell element of the crime (see, People v Sierra, 45 NY2d 56 ).

2011The court’s charge on the agency defense adequately conveyed the appropriate principles (see People v Job, 87 NY2d 956 [1996]; People v Pratt, 39 AD3d 315 [2007], lv denied 9 NY3d 849 [2007]).

2010Under the circumstances, we cannot say that counsel did not have a reasonable basis for not requesting that County Court give the jury a more expansive explanation of the agency defense in its charge (see People v Brimberry, 237 AD2d 229 [1997]; People v Job, 217 AD2d 497, 498 [1995], affd 87 NY2d 956 [1996]; see also People v Lam Lek Chong, 45 NY2d at 75 ; People v Sheppard, 273 AD2d 498, 499 [2000], lv denied 95 NY2d 908 [2000]).

2001When the defendant took the stand and asserted an agency defense, he opened the door to this evidence (see, People v Calvano, 30 NY2d 199 ; People v Rodriguez, 193 AD2d 705 ; People v Portalatin, 126 AD2d 577 ; see also, People v Sanchez, 213 AD2d 566 ; People v Castaneda, 173 AD2d 349 ).

1997In any event, the totality of the trial court’s instructions to the jury, including those regarding consideration of such evidence in connection with the agency defense conveyed the appropriate legal principles (see, People v Williams, 50 NY2d 996, 998-999 ; People v Calvano, 30 NY2d 199, 203, 205 ).

2012In three cases decided on the same day as Lam Lek Chong , we further explained that an agency defense (1) must be charged to the jury if any reasonable view of the evidence supports it (see People v Roche, 45 NY2d 78, 86 [1978], cert denied 439 US 958 [1978]); (2) cannot be used by a person who acts “at the very least as a middleman or a broker for his supplier” (People v Argibay, 45 NY2d 45, 50 [1978], cert denied sub nom.

2010Nor would an agency defense be furthered by revelations that defendant gave drugs to an investigator during the prior sale with the expectation of payment, told her when he would have drugs in the future and made arrangements with her for future transactions (see People v Roche, 45 NY2d 78, 85 [1978], cert denied 439 US 958 [1978]; People v Lam Lek Chong, 45 NY2d at 75; People v Jackson, 11 AD3d 928, 929 [2004], lv denied 3 NY3d 757 [2004]).