Argued March 29, 1978
Decided June 15, 1978
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MAX BLOOM, J.
Mario Merola, District Attorney (Leonard G. Kamlet and Billie Manning of counsel), for appellant-respondent.
Lawrence A. Vogelman and William E. Hellerstein for respondent-appellant.
Today this court reaffirms the established New York rule that 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. Having thus determined that the abolition of that defense would be an unwarranted departure from the decisional law of this State, we must decide in the present case whether, under a reasonable view of the evidence adduced at trial, the jury should have been charged on that question.
The proof in this case, essentially undisputed, was garnered by an undercover police officer, Sylvio Lugo, who struck up a friendship with the defendant, Antonio Roche, after initially encountering him as a fellow patron at various bars. In the course of one of their later meetings, Lugo mentioned that he was interested in making a purchase of narcotics. Roche indicated that he might be of assistance in doing so and invited Lugo to telephone him for that purpose if he so desired. After Lugo's subsequent attempts to follow up were unsuccessful, he sought out Roche at a bar and advised him that he had indeed decided to buy cocaine or heroin. In the course of this conversation, he told Roche that he had in mind an "eighth" (approximately four ounces); Roche estimated the cost of such a quantity at between three and four thousand dollars, depending on its quality and who the seller was.
It was not, however, until the better part of two months had gone by that Lugo telephoned Roche to tell him that he was in a hurry to make an immediate purchase. From The Bronx, where they then met at Roche's request, they proceeded at the latter's direction to Les Nannettes Bar in Manhattan, using Lugo's car. There Roche entered the premises alone, presumably to "see the man" who was the seller. Upon returning to Lugo, who had been waiting in the car, he reported that things had been arranged and that the price would be $4,000. Lugo thereupon handed that sum in cash to Roche who, again alone, re-entered Les Nanettes with it and in a few minutes was back to advise Lugo that the actual delivery of the drugs would take place at a discotheque called the Cheetah.
At the Cheetah, Lugo remained in an upstairs bar area while Roche went to the floor below. As he waited, Lugo observed a shabbily dressed man enter the lower level of the premises with a newspaper under his arm. From Lugo's vantage point, he was able to observe this man remove a white paper bag from the folds of the newspaper and hand it to Roche, who placed it in his waistband. Roche then walked upstairs and, in turn, gave the package to Lugo. Police analysis was to reveal it contained heroin.
About 10 days later, Lugo in the course of a telephone conversation with Roche, complained about the quality of the narcotics. Roche chided Lugo for not having said something about it earlier. The record does not indicate that there was any request or suggestion for adjustment.
Roche was subsequently indicted for criminal sale of a controlled substance in the first degree (Penal Law, § 220.43) and criminal possession of a controlled substance in the first degree (Penal Law, § 220.21). At nisi prius, defense counsel's request for an instruction on agency was denied, the trial court ruling that there was no evidence to support such a contention. A divided Appellate Division, finding that there was such proof, modified by reversing the conviction for criminal sale and directing a new trial on that count; it affirmed the conviction for criminal possession. The case is now here on cross appeals. On this record, we believe the Appellate Division's determination should be upheld.
As noted in People v Sierra ( 45 N.Y.2d 56), People v Lam Lek Chong ( 45 N.Y.2d 64) and People v Argibay ( 45 N.Y.2d 45), the underlying theory of the agency defense in drug cases is that one who acts as procuring agent for the buyer alone is a principal or conspirator in the purchase rather than the sale of the contraband. Since the thrust of our statutes, as consistently construed, is not directed against purchasers, an individual who participates in such a transaction solely to assist a buyer and only on his behalf, incurs no greater criminal liability than does the purchaser he aids and from whom his entire standing in the transaction is derived. Specifically, without more he may not be treated as an accomplice of the seller (see People v Pasquarello, 282 App. Div. 405, affd 306 N.Y. 759; see, also, People v Catterall, 5 Wn. App. 373; 23 CJS, Criminal Law, § 798 , , ). Of course, such a role is not to be confused with that of a middleman — be he a jobber or any other category of merchant trading in narcotics, or a broker furthering his own interests by serving both seller and buyer — who thus essentially acts for himself rather than merely as an extension of the buyer (People v Argibay, supra, p 53).
The defense is not indigenous to New York alone. A clear majority of those of our sister States who have addressed the matter have adopted it (People v Fenninger, ___ Col ___, 552 P.2d 1018; Dent v State, 301 So.2d 475 [Fla] [semble]; State v Lott, 255 N.W.2d 105 [Iowa]; State v Osburn, 211 Kan. 248; Kohler v Commonwealth, 492 S.W.2d 198 [Ky] [semble]; Snead v State, 234 Md. 63; Commonwealth v Harvard, 356 Mass. 452; Roy v State, 87 Nev. 517; Jones v State, 481 P.2d 169 [Okla]; State v Buchanan, 8 Or. 150 [semble]; Commonwealth v Simione, 447 Pa. 473; Smith v State, 396 S.W.2d 876 [Tex]; State v Schultz, 28 Utah 2d 240; State v Catterall, 5 Wn. App. 373; see, also, United States v Stewart, 20 USCMA 300; contra, McKay v State, 489 P.2d 145 [Alaska]; State v Russell, 108 Ariz. 549; Granville v State, 287 A.2d 652 [Del]; Brooks v State, 125 Ga. App. 867, cert den 409 U.S. 1129; People v Shannon, 15 Ill.2d 494; State v Stone, 114 N.H. 114; State v Weissman, 73 N.J. Super. 274; State v Dwyer, 172 N.W.2d 591 [ND]; Higby v State, 485 P.2d 380 [Wyo]).
Concededly, the introduction of the term "agency" into the lexicon of the law governing drug prosecutions at most carries with it limited application of concepts which govern its use in defining relationships and responsibilities more characteristic of the world of commerce and property (People v Argibay, supra, p 53). Blunt acknowledgement of that fact would lessen consequent confusion. As a practical matter, it lends an element of flexibility to the resolution, by Judge or jury, of the relationship to a particular drug transaction of certain of the wide variety of participants who do not neatly fit into the mold of buyer or seller. These range along a spectrum reaching all the way from those whose predatory and profit-laden motives spell out the unmistakably dominant parts they play in such transactions, to those at the far end — who may include persons as diverse as impressionable students, victims of contributing socioeconomic or medical problems, and others who have been seduced by exposure to drugs to fall into a state of dependency on them.
It is therefore not to be assumed that all those who engage in procurement of illegal drugs are motivated by a criminal disposition rather than a desire to satisfy a personal craving to feed an irresistible habit or to aid one so afflicted. Thus, the "agency defense" in good part may be seen as a common-law attempt, in appropriate cases, to recognize the existence of medical and sociological aspects which complicate the factual setting within which the nature of a particular defendant's participation is to be determined.
Perhaps it was out of a recognition of this problem that, just as it has chosen to leave the act of buying drugs unprohibited by the criminal law, the Legislature has also left the agency defense inviolate. Given the accelerated and massive legislative attention that the narcotics laws have received within the last decade, and the fact that our Legislature has chosen to punish drug trafficking more severely than has any other jurisdiction (People v Broadie, 37 N.Y.2d 100, 116, cert den 423 U.S. 950; Carmona v Ward, 576 F.2d 405 [OAKES, J., dissenting]), we must assume that its acceptance of the defense represents a calculated and ameliorative judgment not to impose such penalties upon a person who merely facilitates the acquisition of drugs by a purchaser (People v Chong, supra, p 74).
In so indicating, the court, as at the time of our decision in People v Broadie, 37 N.Y.2d 100, 118, supra, does not pass on the wisdom of the Legislature's judgment. We note, however, that the intervening three years do not appear to have undermined the validity of Chief Judge BREITEL'S observation that the "pragmatic value [of these penalties] might well be questioned, since more than a half century of increasingly severe sanctions has failed to stem, if indeed it has not caused, a parallel crescendo of drug abuse. The premises upon which the Legislature has proceeded have been subjected to vigorous dispute (see, e.g., United States v Moore, 486 F.2d 1139, 1243-1246 [WRIGHT, J., dissenting], supra; Report of the President's Advisory Comm. on Narcotic and Drug Abuse, pp 3, 40; Drug Use in America, op. cit., pp 250-251; Rosenthal, Proposals for Dangerous Drug Legislation, Task Force on Narcotics and Drug Abuse, op. cit., pp 80, 103; Chambliss, Types of Deviance and the Effectiveness of Legal Sanctions, 1967 Wis L Rev 703, 707-708; Frankel, Narcotic Addiction, Criminal Responsibility and Civil Commitment, 1966 Utah L Rev 581, 587-588). Indeed, the debate moves beyond the wisdom of substituting long mandatory prison terms in place of flexible sentencing, of emphasizing isolation and deterrence over rehabilitation. Even the questions whether `the policy of criminalization, which raises the cost and increases the difficulty of obtaining drugs, does in fact make the drug user a proselytizer of others in order that he may obtain the funds to acquire his own drugs', and whether `the compulsion of the addict to obtain drugs and the moneys to purchase them causes him to commit collateral crime that otherwise he might not commit', are questions about which reasonable men can and do differ [citations omitted]".
Moreover, the agency defense rarely, if ever, is credited by the fact finder in the predator case. Not surprisingly, examination of the existent literature on drug prosecutions discloses no suggestion that the assertion of that defense in such profit-laden circumstances leads to any noticeable number of acquittals.
This does not mean that the agency defense is a broad brush to be laid on indiscriminately. It goes without saying that, in order to fall within its sweep, the agent must have no direct interest in the contraband being sold. His function must be performed without any profit motive (compare People v Wright, 20 A.D.2d 652, affd 15 N.Y.2d 555, with People v Lindsey, 16 A.D.2d 805, affd 12 N.Y.2d 958). If he is in fact interested in the outcome, either by ownership of the property or by an agency relationship with the seller, he fails, by definition, to be an agent for the purchaser (see People v Chong, supra; People v Argibay, supra).
Where the defense is raised, it is incumbent to focus on the parties' conduct during the transaction. Salesman-like behavior, commonly connoting an interest that goes beyond representation of the buyer alone, may include touting the quality of the product (see United States v Smith, 452 F.2d 404; cf. United States v Johnson, 371 F.2d 800, 806-807), bargaining over price (United States v Winfield, 341 F.2d 70, 71; cf. People v Harris, 24 N.Y.2d 810) and apologizing for the quality of drugs or the manner of their delivery (United States v Winfield, supra, p 71). Previous acquaintance with the supplier, or with narcotics in general, though of lesser import, may also be taken into account (cf. People v Jenkins, 41 N.Y.2d 307, 312; People v Bucher, 30 N.Y.2d 708; People v Hingerton, 26 N.Y.2d 790).
On the other hand, the fact that an accused advances no funds of his own in making a purchase for another may militate against a finding that he is a principal (see Vasquez v United States, 290 F.2d 897, 898). Though evidence that he was simply doing a favor for a friend may also suggest an agency, he still may be found to have participated in selling if his actions were undertaken with the paramount idea that he would profit thereby (see People v Wright, 20 A.D.2d 652, affd 15 N.Y.2d 555, supra; United States v Smith, 452 F.2d 404, supra).
This is not to say, however, that the acceptance of any benefit must preclude the assertion of the defense as a matter of law. That an agent does not act gratuitously would not necessarily be inconsistent with the defense of agency (People v Valentine, 55 A.D.2d 585; People v Bostick, 51 A.D.2d 749; People v Johnson, 47 A.D.2d 897; People v Fortes, 24 A.D.2d 428, app dsmd 17 N.Y.2d 583).
Although often raised together with entrapment (e.g., United States v Barcella, 432 F.2d 570, 572; United States v Sawyer, 210 F.2d 169; Note, 22 Kan L Rev 272, 276), agency is not an affirmative defense (Lewis v United States, 337 F.2d 541, 543, n 4 [BURGER, J.], cert den 381 U.S. 920; contra, People v Fuller, 34 A.D.2d 852 ). Rather, it may negate the existence of an essential element of the crime — the "sale" (Lewis v United States, supra, p 543, n 4).
It follows that, so long as there is some reasonable view of the evidence that the defendant acted as a mere instrumentality of the buyer, determination of the existence of an agency relationship should be submitted to the jury with appropriate instructions (People v Argibay, supra, p 53; see, also, People v Carr, 41 N.Y.2d 847, revg on dissent at 49 A.D.2d 656, 657; Lewis v United States, 337 F.2d 541, supra; Kelley v United States, 275 F.2d 10; cf. People v Henderson, 41 N.Y.2d 233).
Applying that yardstick here, it is apparent that there was an issue of fact on the question of agency. The course of negotiations was such that Roche could well have been found not to have shared the role of principal in the transaction. At no time did he suggest the purchase or press for it. It was Lugo who pursued their relationship and initiated their conversations about drugs. Nonentrepreneur-like, despite Lugo's evincing a desire to make a purchase, Roche apparently never brought the subject up again; it remained for Lugo to do so, nearly two months later.
Though Roche expressed an opinion as to what he thought would be the cost of the quantity of drugs Lugo desired to buy, so far as the proof indicates it may not have been until after he entered Les Nannettes to see "the man" that he was able to inform Lugo how much it actually was. Nor is there an iota of proof, by way of admission or otherwise, of any material benefit received by Roche at any time; the record is barren of evidence of how the proceeds of the purchase were disposed of other than as described by Roche himself.
Moreover, it may be significant that Lugo was not dependent upon Roche's own statements that the supplier of the drugs was a third party; the observations it was his duty as an officer to make enabled him to witness the delivery itself. And when Lugo later mentioned to Roche that the heroin was of poor quality, the tape that recorded the conversation discloses not the slightest expression of an obligation to explain or undertake to remedy this shortcoming nor did Lugo appear to expect any.
True it is that Roche was no stranger to drugs, to their prices and to persons involved in their traffic, but no matter what suspicions that fact might very well engender it could hardly be conclusive, since that no doubt is the prime qualification a prospective buyer would look for in choosing an intermediary.
The defense having thus squarely presented the issue of agency, the jury should have been instructed on the applicable law under which it could decide whether Roche enjoyed the status of agent. But, with respect to the conviction of criminal possession of a controlled substance, first degree, since agency would not be a defense (People v Sierra, 45 N.Y.2d 56, supra) and the evidence establishes that Roche, however transitorily, was knowingly in possession of the heroin, the conviction on that count must stand.
Accordingly, the order of the Appellate Division should be affirmed.
We concur in result for the reasons stated in People v Lam Lek Chong ( 45 N.Y.2d 64, decided herewith) with respect to the nature of the so-called "agency defense". We do not believe that it is useful or desirable to characterize the agency defense in more precise terms. Essentially, the defense is one submitted to the jury for assessment on broad grounds not susceptible of meticulous definition. If the defense were susceptible of meticulous definition it would limit the jury's perspective in determining whether the defendant was an independently culpable actor in the making of the sale rather than an abettor of the buyer in effecting the purchase. Worse, it would clutter a court's charge with multifarious "ifs", "ands", and "buts", confusing the jury and making likely, to no substantial interest in achieving justice, error-prone charges by the most conscientious and able of Trial Justices.
I respectfully dissent from so much of the court's holding as affirms that part of the order appealed from which reversed defendant's conviction for criminal sale of a controlled substance in the first degree.
My primary objection to the majority's decision stems from my conclusion that this court ought not to recognize the existence of any "agency defense" to a charge of sale of a controlled substance. The "agency defense" in such a case is an unwarranted, unnecessary, and essentially unworkable judicial modification of that classification of criminal conduct enacted by the Legislature and embodied in the Penal Law. Moreover, even were I to concede the validity of an "agency defense" in certain situations, I would not deem it applicable to a case such as this, which involves the sale of a quantity of illicit drugs so large as to warrant the presumption that the purchaser was buying not for personal use, but for resale.
Initially, I note that the doctrine of stare decisis does not serve to bar consideration by this court of the existence of an "agency defense", for we have not previously seized upon the opportunity to discuss the soundness of a doctrine which has crept into our law without that careful analysis appropriate to so significant a topic. The "theory" underlying the "agency defense" in New York State, such as it is, has been developed and applied in drug cases by the various Appellate Divisions rather than by this court. Even those courts, moreover, seem to have simply accepted at face value a doctrine which was initially developed in another day to deal with the somewhat different problems created by passage of the Eighteenth Amendment (see People v Buster, 286 App. Div. 1141); a doctrine, moreover, which has since been repudiated by the very Federal system which fostered it (compare United States v Sawyer, 210 F.2d 169, with United States v Pruitt, 487 F.2d 1241).
While decisions of the Appellate Divisions are, of course, of considerable persuasive authority, they are certainly not binding upon this court. Examination of those so-called "agency defense" cases which did reach this court, however, reveals for the most part a series of affirmances without opinion of Appellate Division determinations which discussed the agency defense concept (People v Lindsey, 12 N.Y.2d 958; People v Wright, 15 N.Y.2d 555; People v Bray, 15 N.Y.2d 637; People v Harris, 24 N.Y.2d 810; People v Sheldon K., 26 N.Y.2d 949). It is of some interest to note that in the vast majority of cases before this court the "agency defense" was unavailing (compare People v Wright, supra; People v Bray, supra; People v Harris, supra; People v Hingerton, 26 N.Y.2d 790, with People v Lindsey, supra; People v Hollins, 19 N.Y.2d 864). At any rate, it is beyond cavil that an affirmance without opinion indicates merely that the result reached in a particular case is correct, and does not serve to place the imprimatur of this court upon the particular theory espoused by the court below. Such an affirmance is thus of little, if any, precedential value.
Perhaps the one case decided by this court which prevents me from declaring outright that we have in fact never indicated any approval of the "agency defense" prior to today is People v Carr ( 41 N.Y.2d 847, revg 49 A.D.2d 656). There, the Appellate Division had sustained the refusal of the trial court to charge possession of a controlled substance as a lesser included offense to a charged sale of that substance. Mr. Justice LOUIS M. GREENBLOTT dissented, contending that the jury could have found the defendant to be an agent of the buyer, and could thus have convicted him of possession and yet not of sale. We reversed on that dissenting memorandum. Although it cannot be denied that by our adoption of that memorandum we necessarily indicated some acceptance of the "agency defense" concept, I do not believe that so slender a reed should foreclose reconsideration of the doctrine at this time, especially since the validity of the "agency defense" theory was not challenged in that case. Accordingly, I conclude that my objections to the "agency defense" do not run afoul of the doctrine of stare decisis.
Turning then to the question of the validity of the "agency defense", I cannot agree that that concept is implicit in the statutory classification of drug-related offenses, as the majority of this court concludes in both this case and its companion, People v Lam Lek Chong ( 45 N.Y.2d 64, decided herewith). The majority purports to find legislative sanction for the "agency defense" in the admitted and hardly enigmatic fact that the Legislature has chosen to impose more stringent punishment upon the seller of drugs than upon the possessor of drugs. The court would draw from this classification the conclusion that the Legislature could not have wished to treat more severely than the actual buyer someone who can be denominated under some arcane mixture of agency and penal concepts an agent of the buyer. Admittedly this statement, so baldly put, has a certain appeal to one's innate sense of justice. More careful consideration of the legislative scheme for controlling the illicit drug trade in New York, however, must lead to its rejection for several reasons even more compelling than the truism that had the Legislature wished to so modify its apparently all-inclusive classification system it could undoubtedly have found some less cryptic means of expressing that intent. I find the majority's extrapolation a rather tenuous foundation upon which to exempt a person who engages in a forbidden transaction from criminal liability based on his participation in that transaction.
My disagreement with the majority is founded in large part upon an essential difference in interpretation of the legislative intendment. It is, of course, undisputed that the statutory classification of drug-related offenses may be broken down into two largely discrete categories, possession and sale, and that by and large those who are guilty of selling drugs are treated more harshly than those who are guilty only of their possession. The majority would view this system as turning upon a distinction between buyers and sellers, and would conclude that the Legislature did not intend to impose harsher sanctions upon an agent of the buyer than it did upon the buyer himself. I cannot agree with this dichotomy; rather, I suggest that the distinction intended to be drawn by the Legislature was between those individuals who contribute in some way to the distribution of illicit drugs, on the one hand, and the ultimate users of those drugs on the other. Thus, I believe that the Legislature is distinguishing not seller from buyer, but rather seller-distributor from user.
The Legislature has determined that the use and distribution of drugs constitutes a grave social danger and a basic threat to the very fabric of our society. Having made that determination, it was faced with a choice between a number of reasonable alternative means of attacking that problem. It could, if it so decided, for example, have concentrated solely on the seller of narcotics and have refrained from imposing any sanctions on the user. Instead, it determined, and wisely I believe, that in order to effectively counteract drug abuse, it was necessary to impose sanctions on both the seller and the user of drugs. Rather than treating with equal severity all participants in drug transactions, however, the Legislature tempered the potential harshness of its action by imposing less stern penalties upon those who possess small amounts of drugs, realizing that the user is as much a victim of the crime as he is a criminal. At the same time, however, it has not neglected to place on a parity with the seller those who possess drugs either with intent to sell or in such large quantities as to fall within the ambit of the "legislative presumption that he who possesses a large amount of narcotics is a seller" (People v Broadie, 37 N.Y.2d 100, 113).
Viewed thusly, the statutory framework provides neither reason nor support for any "agency defense". The Legislature has chosen to distinguish between those whose only crime is to possess relatively small amounts of drugs for their own use, and those who participate in and further the sale and distribution of illicit drugs to others. The agent, by definition, must fall within the latter category, regardless of whether his participation in the sale is motivated by a hope of profiting from the misery of others or by a misguided belief that it is in an addict's best interests to obtain the drugs needed to assuage his habit. The agent may readily be distinguished from the buyer who purchases for personal use, for the latter is as much sinned against as sinning, and may with some reason be treated more gently. The agent, on the other hand, has made a knowing decision to aid in the distribution of drugs, something which is so clearly illegal. He does so not because he is driven to satisfy his own immediate needs, but for some other reasons — possibly a more selfless reason in the case of the "accommodation" agent, but in any case a more considered and less urgent reason. It does not seem unreasonable to treat such persons more harshly than one who possesses drugs for his personal use, for the latter is at least not contributing to the corruption of others. In any transaction involving an agent, that agent is an indispensable link in the chain of distribution. Since he is participating in the sale of narcotics to another, and is not simply obtaining drugs for his own use, his degree of culpability is greater than that of the buyer for personal use. The effect of the "agency defense" is to disrupt this carefully constructed system by the imposition of distinctions which are drawn from the law of agency and which are simply not pertinent to the legislative objective of eliminating drug abuse in New York.
Even were I to agree, however, that in some cases involving, for example, an "accommodation" agent, who simply accepts delivery of a small amount of already purchased drugs for a friend, some type of "agency defense" might be appropriate, I cannot agree that any valid public policy or purpose is served by the application of that "defense" in a case such as this. In the case before us, Roche stands convicted of the sale of four ounces of cocaine to an undercover police officer for some $4,000. The sale was the culmination of several meetings between the two, in the course of which Roche informed the officer that he sold "eighths" of cocaine on a regular basis and made about $500 on each eighth he sold. He also urged the officer to become involved in the drug business, telling him that he could easily make as much as $1,000 a week by selling drugs he could purchase from Roche. This testimony was uncontested, and I am appalled that an "agency defense" is to be premised solely upon the shadowy existence of "the man" to whom Roche supposedly delivered the money given him by the officer as well as upon the fact that Roche, like most dealers, obtained the drugs from someone else.
The picture presented by the testimony is not that of an "accommodation" buyer seeking to aid a friend; rather it is a portrait of a man who is deeply involved in narcotics sales as a business, and who attempted to recruit the police officer into his business as a pusher of drugs to be supplied by him. To even suggest that an "agency" concept is appropriate in such a situation is inconsistent with reality. This conclusion is buttressed by the fact that such a large amount of cocaine was involved. The Legislature, which in most situations treats the crime of possession more leniently than that of sale, has excepted from this pattern the possession of large amounts of illicit drugs. In such cases, the Legislature has indulged in the reasonable presumption that the possession is with an intent to sell, and so provides sanctions commensurate to those imposed on sellers. Indeed, as we have stated in another context, a person who possesses a large amount of drugs "is hardly less culpable or dangerous than the appellants who made `street' sales" (People v Broadie, 37 N.Y.2d 100, 113, supra).
I am concerned, moreover, not merely with the absence of any statutory authority for the so-called "agency defense" (see People v Sierra, 45 N.Y.2d 56, 60, decided herewith), but also with what I consider to be certain potential inconsistencies inherent in so vague a concept. Indeed, I believe that close examination of the various "agency defense" cases decided by this court today shows that even those on this court who agree that there does exist an "agency defense" are unable to agree as to its source, its ramifications, and its applications. In the present case, for example, the majority is requiring an "agency defense" charge although all the testimony at trial indicates that Roche was certainly more than a mere agent of the police. In People v Lam Lek Chong ( 45 N.Y.2d 64, supra, decided herewith), however, the court is sustaining a conviction, in the face of what the majority characterizes as an erroneous "agency defense" charge, on the ground that no "agency defense" charge is necessary in that case because the defendant there admitted that he hoped to obtain a collateral economic benefit as a result of the sale, although he denied that he was going to receive any direct profit from the sale itself. Finally, in People v Argibay ( 45 N.Y.2d 45, decided herewith), the court is also sustaining the conviction of a defendant who was denied an "agency defense" charge. There the majority's decision is based upon the fact that all the People's evidence at trial showed that Argibay was a middleman between the purchaser and the supplier. I see little difference between that case and this, since in both cases the respective defendants did not testify and the police testimony, if believed in full, would preclude an "agency defense". On the other hand, there would appear to be as little in Argibay to preclude the jury from believing only a part of the police testimony as there is in the instant case. Indeed, in this case, as in Argibay, the portrait painted by the testimony is that of a middleman engaged in the sale and distribution of narcotics for profit. If anything, application of an "agency defense" concept is even less acceptable in this case than it would be in Argibay, because of the much greater amount of drugs involved here. Whatever possible justification may exist for an "agency defense" concept is certainly lacking in a case involving the sale of a large quantity of illicit drugs for resale. In short, I see no benefit to either the public or the law in recognizing a "defense" which is so uncertain of application.
I am also troubled by certain questions, not passed upon in these cases because of the posture in which they have reached us, but which may arise subsequently because of the court's discussions of the "agency defense". It is indicated, I believe, by the various opinions handed down today, that a majority of this court would agree that the term "agency defense" is a misnomer, since the concept propounded by the court is not a defense, but rather would negate the existence of an essential element of the crime charged, the sale itself. As such, it could be argued that in any case in which an "agency defense" charge could reasonably be demanded, it may well be a part of the People's burden to prove the absence of agency. Looking to the realities of the rather murky world of the drug culture and of drug dealers, it is clear that such proof will often be well nigh impossible to obtain. Indeed, it would appear that the use of a few fairly simple ruses by a dealer would suffice to throw an impenetrable veil of confusion and uncertainty over his dealings and his status. In the present case, for example, it might be argued that for the People to convict defendant it would be necessary to proffer proof as to the relationship between Roche and the mysterious third man. I cannot agree that this is or should be necessary under the existing statutory scheme. The Legislature has deemed it appropriate to forbid all drug transactions, not simply those which can be proven to be profit oriented or organized along the lines of more legitimate business ventures.
Accordingly, I must dissent from so much of the majority decision as affirms that part of the order appealed from which reversed defendant's conviction for sale of a controlled substance. I am, of course, in full agreement with so much of the court's decision as rejects defendant's cross appeal from the affirmance of his conviction for possession of a controlled substance.
Judge COOKE concurs with Judge FUCHSBERG; Chief Judge BREITEL and Judges JONES and WACHTLER concur in result in a concurring memorandum; Judge GABRIELLI dissents in part and votes to modify in a separate opinion in which Judge JASEN concurs.