The “thrust” of New York *191statutes, as “consistently construed, is not directed against purchasers” (People v Roche, 45 NY2d 78, 82-83 [1978], cert denied 439 US 958 [1978]), and buyers are not considered accomplices of the seller despite their “key position in the drug cycle” (People v Lam Lek Chong, 45 NY2d 64, 73 [1978], cert denied 439 US 935 [1978]). Likewise, the agency defense originated due to the understanding that leniency should be shown to low-level conduits, acting on behalf of purchasers with limited intent, and who are assuredly not “tycoons of the trade” (see Lam Lek Chong, 45 NY2d at 74). We recognized in Roche that buyers’ agents may not be “motivated by a criminal disposition” but rather are often gripped by addiction or attempting “to aid one so afflicted” (45 NY2d at 83). Therefore, these policy concerns militate in favor of the conclusion that the agency defense applies to criminal facilitation of a drug sale.
The majority finds that the agency defense applies only to a criminal sale and not to facilitation because of the harsh penalties imposed for selling narcotics under the Rockefeller Drug Laws, while facilitation is only a misdemeanor. The fact that facilitation is not a felony should not alter our analysis. While the stringent and inflexible penalties for the sale of drugs may have been the impetus for preserving the agency defense, the defense both predated the imposition of the Rockefeller Drug Laws (see Lam Lek Chong, 45 NY2d at 73) and survived their mitigation by the Drug Law Reform Act (see majority op at 186-187). The severity of the punishment does not change the underlying rationale for the agency defense. We stated plainly in Roche that “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” (45 NY2d at 83). Where a court has determined that defendant acted solely in the interests of the buyer, as here, he cannot be guilty of also aiding the seller.
The defendant here was acquitted of a narcotics sale by the trial court on the express basis that defendant was an agent of the buyer. The U.S. Supreme Court found that a buyer does not “facilitate” a drug transaction (Abuelhawa v United States, 556 US 816, 819-820 [2009]), and a buyer cannot be prosecuted for criminal facilitation of a sale, even though the buyer knows he or she is rendering aid to the seller, provides the “means or opportunity,” and makes the drug transaction possible (see Penal Law § 115.00 [1]). As such, an agent acting as the buyer’s proxy cannot be guilty of facilitating a criminal sale of drugs as he is *192acting on behalf of a party who has been absolved of the crime of facilitation.1 We held in People v Andujas that “[t]he [agency] defense simply reflects the logical proposition that if a defendant is acting solely in a capacity which is inherently inconsistent with being a seller—i.e., acting as an agent for the buyer—he cannot be a seller” (79 NY2d 113, 118 [1992]).
The majority takes the contradictory position that an intermediary can be aligned solely with the buyer and provide no aid to the seller for the purposes of the sale, while simultaneously being guilty of criminally facilitating the seller.2 Both a buyer and his agent cannot be guilty of aiding the seller given our common-law holdings and the legislature’s decision to leave the “agency defense inviolate” (Roche, 45 NY2d at 84). We recognized in Roche that “[the legislature’s] acceptance of the [agency] 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” {id.).
Furthermore, the majority’s holding implies that an intermediary of the buyer and seller who requests an agency defense charge will automatically be deemed guilty of criminal facilitation. Asking for an agency charge, in some ways, is an admission by the defendant that he or she played a role in the drug transaction and that, in itself, may be enough for a jury to determine that the defendant facilitated the sale of drugs. This result conflicts with the determination that a defendant who is deemed an agent of the buyer stands in the shoes of the buyer and cannot be more culpable under the law (see Roche, 45 NY2d at 83).
Consistent with our previously stated rationale for the agency defense, I would reverse defendant’s conviction for criminal facilitation; therefore, I respectfully dissent.
*193Judges Ciparick, Read, Smith and Pigott concur with Judge Graffeo; Chief Judge Lippman dissents and votes to reverse in an opinion.
Order affirmed.
. The majority’s concern that agents of the buyer who never handle the drugs can escape all criminal liability did not alarm courts who first applied the agency defense when criminal facilitation was not even a statutory offense (see e.g. People v Lindsey, 12 NY2d 958 [1963], affg 16 AD2d 805 [2d Dept 1962]).
. The absence of the term “sell” from the facilitation statute offers no support to the majority, and one would not expect “sell” to be there. Moreover, any offense, including the sale of narcotics, can be substituted for the term “crime” in the text of the statute (see Penal Law § 115.00).