People v. Argibay

Decision Date15 June 1978
Parties, 379 N.E.2d 191 The PEOPLE of the State of New York, Respondent, v. Anthony ARGIBAY, Appellant. The PEOPLE of the State of New York, Respondent, v. Anthony DI GUISEPPE, Appellant.
CourtNew York Court of Appeals Court of Appeals

Irving Cohen, New York City, for Anthony Argibay, appellant.

Eugene G. Lamb, Garden City, for Anthony Di Guiseppe, appellant.

Robert M. Morgenthau, Dist. Atty. (Henry Steinglass, Robert M. Pitler and David I. Pincus, of counsel), for respondent.



Defendants Anthony Argibay and Anthony Di Guiseppe appeal from affirmances by the Appellate Division, one Justice dissenting, of their convictions after jury trial of criminal sale of a controlled substance in the second degree (Penal Law, § 220.41).

The principal issue on Argibay's appeal is whether, in a case involving sale of narcotics, the jury must be charged on agency when the evidence demonstrates that defendant's involvement in the transaction was, at least, that of a middleman or broker. As to Di Guiseppe, who received an agency charge, the issue tendered is whether the charge was correct in precluding the agency defense where defendant received any financial gain in the transaction; that issue is obviated by a failure to object to the charge at trial. Another issue, common to both appeals, is whether the trial court erred in failing to declare a mistrial after learning that a juror had, during the trial, said to counsel for Argibay "I hate you". The court had offered to conduct a Voir dire examination of the juror, an offer declined by defense counsel.

The orders of the Appellate Division should be affirmed. No charge on agency is required, or appropriate, when the testimony essential to the verdict in favor of the People leads to the inevitable conclusion that defendant was not merely accommodating the buyer, but was acting, if not as a principal seller, then at the very least as a middleman or a broker for his supplier. Hence, the court properly declined an agency charge as to Argibay. As to Di Guiseppe, the agency charge was erroneous, but the error was not preserved by objection at trial. While failure to take action on defense counsel's report of juror misconduct would have been error, defendants were not entitled, automatically, to a mistrial. The trial court acted appropriately in offering to conduct a Voir dire examination, and defense counsel's refusal of the offer worked a waiver of any error.

Several other issues, raised and briefed by the defendants, have been considered and rejected.

The drug transaction in this case was initiated, according to police testimony, by a telephone call from Joseph Di Guiseppe, brother of appellant Anthony Di Guiseppe, to undercover Officer Sievers, on June 6, 1975. Preparations were made for a purchase of one ounce of cocaine that day. Sievers and undercover Officer Siebert were introduced to Anthony Di Guiseppe, and the officers were taken to the home of the "connection". The transaction was aborted, however, with the officers waiting in their automobile in front of the connection's home until 1:00 a. m., never having met the connection or entered his apartment. Joseph Di Guiseppe had driven away from the scene, and Anthony Di Guiseppe had not emerged from the connection's building by the time the agents decided to leave.

After two telephone calls exploring the "foul up" of June 6, Joseph Di Guiseppe agreed to call Sievers when a new transaction had been arranged. On June 13, a week after the aborted "buy", Joseph Di Guiseppe called Officer Siebert and made new arrangements. Siebert and Sievers again met the Di Guiseppe brothers, and were taken to the same location. After ascertaining that Sievers had money for the cocaine, defendant Anthony Di Guiseppe accompanied him to defendant Argibay's apartment, where the transaction was to take place. Argibay's supplier was to deliver cocaine soon and Sievers and defendant Di Guiseppe were instructed to wait in the kitchen when he arrived, so they would not see him. The delivery was made, the cocaine was tested and weighed, and after a slight dispute over the weight, Sievers paid Argibay $1,700 and received just less than an ounce of cocaine. Sievers gave Di Guiseppe a grain "off the top", and then saw money change hands from Argibay to Di Guiseppe. When Sievers asked how he could reach Argibay to purchase more cocaine, he was instructed to deal through Anthony Di Guiseppe.

A week and a half later, Sievers called Anthony Di Guiseppe about an additional purchase, but was told that Argibay was not then interested in selling any drugs. Di Guiseppe offered to get back to Sievers about obtaining cocaine from another source. Time passed without any return call from Di Guiseppe, and Sievers went to Argibay directly to try to make a purchase. Argibay indicated that he was not making enough money to warrant his continued involvement in the narcotics trade, and declined to sell any more cocaine.

Argibay and the Di Guiseppe brothers were arrested and arraigned in September 1975. Joseph Di Guiseppe pleaded guilty and was accorded youthful offender treatment. Argibay and Anthony Di Guiseppe went to trial, at which the police testimony detailed the narcotics transaction. Argibay, an architecture student at Pratt Institute, called two character witnesses. Di Guiseppe called no witnesses. Neither defendant testified.

On the last day of trial before summations and the charge to the jury, Argibay's trial counsel informed the court that, as the jurors had filed out of the jury room at the end of the day, one of the jurors had stopped in front of him and said "I hate you." Counsel for Di Guiseppe reported that he, too, had heard the remark. A motion was made for a mistrial or, in the alternative, for replacement of the juror by an alternate. When the motion was denied, an application was made for the court to examine the juror the next morning as to any bias that "would prevent her from rendering a fair verdict". Although the application had been initially denied, the court had reconsidered by the next morning, and offered to question the juror. Counsel for Argibay, however, had changed his mind, and requested the court not to conduct an examination of the juror, even after the court had indicated the juror would not be disqualified unless she was first questioned. Hence, no further inquiry was conducted.

The juror was charged that if they found defendant Di Guiseppe to be solely an agent of the buyer, they should find him not guilty of the sale of the drugs. In explaining the agency charge, however, the court said "If he received or is promised any advantage, benefit or compensation for his part, he is not an agent." No objection was taken to this charge. As to defendant Argibay, despite a request, no agency charge was given. Each defendant was convicted and sentenced to a term of from six years to life imprisonment. The Appellate Division affirmed, one Justice dissenting.

Extended discussion of the juror...

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