People v. Lam Lek Chong

• Decision Date: 15 June 1978
• Citation: 379 N.E.2d 200,45 N.Y.2d 64,407 N.Y.S.2d 674
• Parties: , 379 N.E.2d 200 The PEOPLE of the State of New York, Respondent, v. LAM LEK CHONG, also known as Jimmy Lam, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 674

407 N.Y.S.2d 674

45 N.Y.2d 64, 379 N.E.2d 200

The PEOPLE of the State of New York, Respondent, v. LAM LEK CHONG, also known as Jimmy Lam, Appellant.

Court of Appeals of New York.

June 15, 1978.

Henry J. Boitel, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (David A. Rapaport and Robert M. Pitler, New York City, of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

The defendant has been convicted of criminal sale of a controlled substance in the first degree (Penal Law, § 220.43) for allegedly selling a pound and a half of heroin to two undercover police officers in Manhattan. At the trial the defendant denied selling the drugs and testified instead that he had simply acted as the agent of the buyers, by locating a seller and helping the officers complete the purchase. On this appeal the defendant claims that the trial court erred in charging the jury that he could only be considered an agent of the buyers if he acted "purely gratuitously" and that if he received "any benefit, however slight, from having participated in the transaction, he would not be an agent (of the buyers), but a seller." The prosecutor takes the position that the defendant was not prejudiced by the charge because the evidence, particularly the defendant's own admissions at the trial, conclusively shows that he was not acting solely as an agent of the buyers. The People also urge that the so-called "agency defense" has been interpreted too broadly by the Appellate Divisions and should either be abandoned or applied only to a narrow class of cases.

The indictment charging the defendant with selling heroin to two undercover police officers on May 30, 1974 was the result of a joint State and Federal narcotics investigation which had begun in January of that year. ¹

At the trial the undercover officers, Wright and Mingo, testified that they first met the defendant on January 24, 1974 at a travel agency, located on Park Row in Manhattan, which was owned and operated by the defendant. They introduced themselves by mentioning a mutual acquaintance, apparently involved in drug traffic, and during a half hour conversation indicated to the defendant that they were pimps and narcotics dealers who had a considerable amount of money available which they wished to invest in heroin. The defendant suggested that they purchase the drug in Hong Kong and smuggle it into the country by, for instance, using women couriers. When the officers asked the defendant if he could sell them some heroin he introduced them to Shark Fish, also known as Robert, who he said "can help you out."

Several days later Robert and an individual named Sonny sold the officers a pound and a half of heroin at $28,000 a pound. The officers apparently were only prepared to purchase a pound but the dealers insisted that they take the full amount, and the officers left owing $14,000. On January 30 Officer Mingo called the defendant to tell him the heroin was good. In this and later conversations the defendant reminded them of the balance due and told them that the sellers threatened to hold him responsible if the officers failed to pay. Eventually the officers paid the balance; part of it directly to the sellers and the remainder to the defendant. The defendant kept the initial payment of $1,000 but transmitted a later $4,000 payment to Sonny and Robert.

During these meetings the defendant told the officers that he had connections in Hong Kong and cited instances where heroin purchased in the Far East had been smuggled into the United States by ordinary mail, women couriers and merchant seamen. He told them that he had sent a man to Hong Kong to investigate.

Throughout March and April the defendant had several meetings with the officers in various Manhattan hotel rooms. At the first meeting, on March 5, he told them that in the past he had been involved with heroin on a part-time basis but having met them was prepared to arrange a big sale, as much as 50 or 100 pounds. He said that his man in Hong Kong had reported that he could arrange for them to purchase as much heroin as they wanted. He later introduced them to David Chan, the owner of an import-export business who agreed to smuggle 50 to 100 pounds of heroin into the country for them.

It was finally arranged that the officers would fly to Hong Kong where they would meet an individual named Francisco. The defendant would accompany them provided they paid the expenses of his trip. Mingo and the defendant would remain in the hotel room while Wright went to inspect the heroin. If he found it acceptable Wright would call Mingo who would then transfer the money to the defendant who, in turn, would deliver it to an individual in another room. The heroin would then be delivered to Chan who would seal it in soy bean cans and ship it to the United States. Prior to leaving the officers gave the defendant $1,000 toward his expenses.

On April 17 the officers arrived in Hong Kong where they met the defendant and Chan and were later introduced to Francisco. The defendant told them that they could purchase 100 pounds and showed them a sample of brown rock heroin. After several days of negotiations the deal fell through when the officers refused to put up several thousand dollars as "front money" before being permitted to inspect the full amount offered for sale.

On May 5, having returned to New York, the officers called the defendant at his travel agency and told him they were still interested in buying heroin in smaller quantities. The defendant agreed to contact Robert or Sonny. In numerous telephone conversations between the defendant and the officers negotiations continued throughout the month of May. At one point, May 28, the defendant told the officers that Francisco had agreed to sell them heroin. The next day the defendant told them the sale would take place that night. When Mingo told him that they did not have the money on hand and that it was too late to go to the bank, the defendant complained that something was always going wrong either on "your side" or "this side."

On May 30 the defendant told the officers that he had a pound and a half of heroin and later arranged to meet them at First Avenue and 6th Street at 11 o'clock that evening. He said they should bring the money and also wanted to be reimbursed for his Hong Kong expenses.

When the officers drove to the scene they saw Robert sitting in a car nearby. They were talking to Robert when the defendant arrived and entered their car. He asked them "Why you play with Robert" and then said "It's not Robert doing, it's me doing * * * I give you the stuff, you give me the money, everybody gives, you go and I go OK." The defendant asked them if they had the money including "my piece". They said they had $45,000 and "you get your piece out of that." After the officers showed him an attache case full of money the defendant told them to drive to another location where he got out of the car and asked Mingo to come with him.

The defendant and Mingo entered a nearby building and went to Francisco's apartment, which the defendant opened with a key. Inside the apartment the defendant led the officer to a garbage can, removed a package and gave it to the officer stating that it contained one and one-half pounds of brown rock heroin. As they left the building the defendant was arrested.

Most of the conversations with the defendant on the telephone, in the Manhattan hotels and in the car prior to the sale on May 30 had been recorded by the police and were played for the jury at the trial. Analysis of the package given to Officer Mingo confirmed the defendant's statement that it contained one and one-half pounds of heroin.

As noted the defendant testified that he had never sold heroin to the officers but had simply assisted them in their efforts to purchase the drug. He stated that when he first met them he suggested that they invest their money in certain legitimate businesses he planned, specifically a Harlem travel agency and a downtown nightclub. When they insisted on buying heroin he introduced them to a seller in order to cultivate their friendship. He did not participate in the January sale and he received no compensation for bringing buyer and seller together. He admitted that following that sale the officers gave him several thousand dollars and that he kept $1,000. However he claimed that this was a loan to cover his expenses for an upcoming business trip to London.

He also testified that his references to connections in Hong Kong and knowledge of heroin traffic and smuggling routes was part of a story he made up and told the officers to maintain their interest in him. When he was pressured to deliver, he led them on a wild-goose chase to Hong Kong. Upon their return, in order to redeem himself, he once again agreed to help them purchase heroin. Thus he negotiated with Francisco on their behalf and later brought them to the seller's apartment. However he denied handing Mingo the package of heroin and claimed that they left the apartment when they found the door open and the apartment empty. It was not until they reached the street that the defendant realized that Mingo was carrying a package.

The defendant testified that he did not receive, and was not to receive any profit from this transaction. He was not working for Francisco and expected no compensation from him. He did expect the officers to reimburse him for his Hong Kong expenses, but he did not expect to share in the profits when they resold the heroin. In short, he claimed that he had simply acted out of friendship and with the hope that if he helped them purchase heroin they might later help him by investing in certain legitimate business ventures.

Under New York law a person may be found guilty of selling drugs when he gives them to another even though he has received nothing in return. Subdivision 1 of section 220.00 of the Penal Law states: " 'Sell'...