People v. Windley

OPINION OF THE COURT

Ross, J.

The facts as detailed by our dissenting colleagues are sufficiently accurate so as not to require repetition here. At issue before us is whether the defendant was an agent of the purchaser, the undercover police officer, and whether the trial court’s charge on the defense of agency was prejudicial to this defendant so as to require reversal of his conviction for criminal sale of a controlled substance in the third degree. We have concluded that defendant was not an agent of the purchaser, but rather played an active role as seller of the contraband. Additionally, the trial court’s statement on agency, when read in its entirety, was accurate, and we affirm the judgment of conviction.

As both dissenters concede, the question of defendant’s status in this illegal transaction was a proper question for the jury, and one in which they accurately determined that defendant was a seller of drugs. This case cannot be viewed in a vacuum. It is important to remember that when the undercover officer drove to the prearranged locale, defendant was not the only individual on the street, but was part of a group of 12 men. After Officer McCann asked of this congregation “if anyone had dimes”, defendant then voluntarily emerged from the crowd and inquired as to what Mc-Cann desired and in what quantity.

The defendant then called over his shoulder to codefendant Blue, “duay, duay”. Blue then withdrew the requested amount of drugs from the cobblestones surrounding the base of a nearby tree. While Blue was retrieving the contraband, defendant remained by the unmarked car and told the undercover officer “all right, give me the money and you got to give me one dollar extra for me”. The officer complied but only surrendered $20—one 10, one 5 and five 1-dollar bills—from the previously photostated $30 total. Defendant, however, demanded that McCann pay the additional dollar. McCann did as requested and gave defendant a five-dollar bill with defendant providing the appropriate change.

Blue now approached and handed the narcotics directly to McCann. At the urging of Blue, McCann immediately left the area.

A few minutes later defendant and Blue were arrested. Blue had in his possession the $20 of marked money while defendant was in possession of that “additional dollar”.

Although both dissenting colleagues label defendant’s receipt of that “sole dollar” as a tip, a reasonable reading of these facts, coupled with the realities of life, lead us to conclude otherwise. Although most of the money was seized from, codefendant Blue, the latter could certainly have been the middleman whose functions were to retrieve the drugs from its secreted location and to act as a “banker”, holding the receipts until completion of the day’s transactions. This dollar, which was furnished at the urgings of the defendant, was not a gratuitous offering by Officer McCann for defendant’s co-operation. Rather, this stipend can reasonably be viewed as an attempt by defendant to obtain “a little extra” without having to fully account to his partner. The presence of this one-dollar bill which was seized from defendant, and its significance, raised a factual question for the sole determination of the jury. It is not for us to determine that the money was a tip, but it is simply another factor to be weighed by the jury.

The dissent in analyzing this case has termed defendant’s participation and profit therein as de minimus. Defendant’s role was anything but minimal. Although the profit to this defendant may have been small, can we then say as the dissent seems to indicate, that an approximate 5 % extra yield on all drug transactions is de minimus. The profit motive is merely one of many factors to be considered in determining whether defendant is an agent of the buyer. Although one appellate court has stated that the profit motive should not be elevated “to the single most important factor” (People v Peters, 71 AD2d 641, 642), the Court of Appeals has indicated that receipt of a profit may be sufficient to establish an intent to sell (People v Lam Lek Chong, 45 NY2d 64, 75). In addition to profit, other factors which the jury may consider in evaluating a claim of agency are: “the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers” (People v Lam Lek Chong, supra, at p 75).

It is evident that defendant was not a tycoon, nor could he become one on this transaction; however, other factors are present which clearly demonstrate that defendant was not the agent of the buyer. These include the fact that defendant and the buyer had no prior relationship; defendant had known codefendant Blue for approximately 10 years; defendant took the initiative and made the sale possible; defendant displayed a thorough knowledge of street trafticking in drugs; and defendant’s over-all manner and actions substantiate that this was a well-choreographed, two-person drug operation, conducted by two street-wise entrepreneurs. The conclusion is inescapable that defendant fails to meet the standard of being a mere extension of the buyer, and, thus, the labeling of defendant as an agent of the buyer is incorrect because: “[t]o be an agent of his buyer, a narcotics merchant must be a mere extension of the buyer. He may act to procure what the buyer wants because the buyer has asked him to do so, but not out of any independent desire or inclination to promote the transaction.” (People v Argibay, 45 NY2d 45, 53-54.)

It is inconceivable how this defendant fits within this description of an agent. Obviously, the defendant’s actions indicated an “independent desire * * * to promote the transaction.”

Defendant next assigns error to the court’s charge on agency. The dissent would invoke our discretionary jurisdiction and review this unobjected-to charge. However, under the facts of this case, since the alleged error was not preserved no reason exists for us to review this claim. This is not such a case as would warrant the exercise of our discretion in the interests of justice under GPL 470.15 (subd 3, par [c]). Further, if we were to review the charge, there was no error. The charge on the defense of agency did not, as now contended, distort the criteria to be utilized in determining the factual question of agency.

Accordingly, the judgment, Supreme Court, New York County (Goodman, J.), rendered on November 2, 1979, nunc pro tunc as of June 22, 1978, convicting defendant after trial by jury, of the crime of criminal sale of a controlled substance in the third degree, should be affirmed.