Opinion
November 30, 1970
Appeal from a judgment of the County Court of Chemung County, rendered December 3, 1968, upon a verdict convicting defendant of the crime of criminally selling a dangerous drug in the second degree (Penal Law, § 220.35). The indictment charged the commission of said crime on June 17, 1968 at 352 East Fourth Street in the City of Elmira. According to the prosecution's proof, S.A. Li Destri, a State Trooper conducting an undercover narcotics investigation, met defendant, with whom he had become acquainted, on a Corning street on said date and asked him if he would be able to "cop" anything from him, whereupon defendant said "he didn't have any on him, but he knew where he could get some." Defendant then drove his car home, the Trooper picked him up there, as arranged, and they drove, with two others, to an Elmira bar known as Ramsey's. Shortly, the trooper and defendant drove to a private residence which defendant entered and in a few minutes they went to the Fourth Street address. Defendant asked Li Destri to give him five dollars, the request being complied with, and defendant entered the residence there, returning in about five minutes and exhibiting two homemade "joints", later found to contain marijuana, which he gave to the trooper, after first lighting one, testing it and stating "Real good stuff. It's dynamite." Defendant's volunteering of knowledge of the whereabouts of narcotics, his trip from Corning to Elmira, his three stops in the latter city, his request for and receipt of money, his "trade talk" concerning the material and its transfer to the police servant, all without proof of any "active inducement or encouragement" on the part of the trooper or of reluctance by defendant and with various chances open to defendant to depart from the criminal course leading to the eventual sale, preclude the upholding of the affirmative defense of entrapment as a matter of law (Penal Law, § 25.00, 40.05 Penal; cf. Sherman v. United States, 356 U.S. 369, 372). The jury had a right to find on the evidence that the officer's conduct did no more than afford to defendant, who was ready and willing, the opportunity of committing the crime ( People v. Fuller, 34 A.D.2d 852; People v. Pulliam, 28 A.D.2d 786). The jury was warranted in finding defendant a principal under inferences which reasonably could be drawn from the testimony and under the court's instructions, to which no exception was taken by appellant ( People v. Hingerton, 26 N.Y.2d 790, 792; People v. Harris, 28 A.D.2d 1174, affd. 24 N.Y.2d 810; People v. Wright, 20 A.D.2d 652, affd. 15 N.Y.2d 555). In People v. Silverman ( 23 A.D.2d 947), relied on by appellant, the trial court refused to charge the jury as to the defense of agency. The word "sell", as applicable to article 220 of the Penal Law, being defined as "sell, exchange, give or dispose of to another, or to offer or agree to do the same" (Penal Law, § 220.00, subd. 5), defendant's assertion that there was no sale is devoid of merit. The sentence was such as not to justify interference by this court. Judgment affirmed. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.