People v. Hingerton
| Decision Date | 27 February 1967 |
| Parties | The PEOPLE, etc., Respondent, v. Jack HINGERTON, also known as Jack Molino, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before CHRIST, Acting P.J., and BRENNAN, HOPKINS, BENJAMIN and MUNDER, JJ.
MEMORANDUM BY THE COURT.
Judgment of the County Court, Suffolk County, rendered May 31, 1966 on resentence, reversed, on the law and the facts, and indictment dismissed.
Defendant's conviction for violation of the Public Health Law with respect to narcotic drugs (Penal Law, § 1751, subd. 1) rests on a single sale of marijuana to a special employee of the police department. The People's proof affirmatively established that defendant acted solely as an agent of this employee; and failed to show that he received any financial profit from the transaction or that he was acting in concert with the actual vendor. Under these circumstances, the learned trial court should have applied the rule that 'one who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics' and should have granted defendant's motion to dismiss the indictment (People v. Lindsey, 16 A.D.2d 805, 228 N.Y.S.2d 427, affd. 12 N.Y.2d 958, 238 N.Y.S.2d 956, 189 N.E.2d 492; People v. Buster, 286 App.Div. 1141, 145 N.Y.S.2d 437; People v. Branch, 13 A.D.2d 714, 213 N.Y.S.2d 535; People v. Silverman, 23 A.D.2d 947, 260 N.Y.S.2d 431; United States v. Moses, 3 Cir., 220 F.2d 166; United States v. Sawyer, 3 Cir., 210 F.2d 169).
We disagree with the majority's conclusion that the People's proof affirmatively established that defendant acted solely as an agent of the buyer. As we view the record, there was no affirmative proof at all as to whom he was acting for; and a finding on that point would necessarily be based upon an inference drawn from circumstantial proof.
The buyer testified that he had telephoned defendant and had made an appointment with him 'to buy narcotics;' that he drove to defendant's home in Copiague and asked him 'if he had any stuff for sale;' that defendant said 'he (had) none on him but we could go get some;' that defendant went with him, in the buyer's car, to a barbershop in Amityville, where they met the seller; that defendant asked the seller if he had any marijuana and the seller said he did but they would have to go outside to his car, as he didn't...
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