People v. Magee

• Decision Date: 22 July 1999
• Citation: 695 N.Y.S.2d 166,263 A.D.2d 763
• Court: New York Supreme Court — Appellate Division
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>EDWARD C. MAGEE, Appellant.

263 A.D.2d 763

695 N.Y.S.2d 166

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.EDWARD C. MAGEE, Appellant.

Mikoll, J. P.

Decided July 22, 1999.

Mercure, Crew III, Yesawich Jr. and Carpinello, JJ., concur.

Mikoll, J. P.

Defendant's principal contention on this appeal is that County Court erred in denying his request to instruct the jury on the agency defense in connection with his sales of controlled substances to an undercover State Police investigator.

On September 16, 1997, State Police Investigators Cheryl Sickler and Michael Franz, engaged in undercover narcotics operations, were seated in their vehicle parked on West Clinton Street in the City of Ithaca, Tompkins County. When Sickler rolled down her window, defendant approached and Sickler asked him whether an individual named "Ready" was around. Defendant replied that he was not, but asked, "What do you need?" Sickler stated that she wanted a "twenty", denoting a $20 packet of crack cocaine. Defendant responded that he could provide that, as well as Valium and Percocet, but would have to be first driven to his home. When Sickler asked defendant if he was working with the police, he said, "No, this is how I make my money." Just then, a man on a bicycle appeared on the scene. Telling the officers to wait, defendant walked off a short distance and conversed with the bicyclist. He then returned to the car and handed Sickler a packet containing crack cocaine, and Sickler gave him $20. Defendant then offered her Percocet at $2 per pill, and Sickler gave him an additional $20 for 10 pills (although she received only nine).

Defendant's trial strategy centered exclusively upon an agency defense. His account of the events was essentially the same as Sickler's, except as to the source of the Percocet.^[*] Defendant testified that he had been addicted to crack cocaine since 1989 and had committed numerous crimes directly or indirectly related to his addiction. While denying that he sold drugs, he admitted that he frequently obtained either drugs or money for their purchase through various schemes, including selling fake drugs, and holding himself out as a dealer long enough to obtain money from prospective purchasers, promising to return with drugs, but disappearing thereafter. As to the transaction with Sickler, defendant said that his original intent was to take her money and vanish without producing any drugs. He changed his plan upon the arrival of the bicyclist, from whom he had purchased drugs on numerous prior occasions. He testified that he gave Sickler the cocaine and Percocet in exchange for $40, which he thereafter turned over to the bicyclist. Although he ultimately received nothing from the transaction, he testified that he expected that the bicyclist would give him something for the business, and lamented that he had "worked for him for nothing".

An agency defense must be submitted to the jury if any reasonable view of the evidence, considered in the light most favorable to the defendant, supports the conclusion that the defendant, in selling narcotics, was acting "solely on behalf of the buyer such as to be a mere extension or instrumentality of the buyer" (People v Ortiz, 76 NY2d 446, 449; see, People v Argibay, 45 NY2d 45, 55). The policy underpinning the defense is that persons who purchase or possess drugs, including those acting on their behalf, warrant less severe criminal liability than those who sell them. Consequently, availability of the defense hinges entirely on the relationship between the defendant and the buyer, and whether the circumstances of the transaction indicate that defendant's involvement in the crime was solely for the accommodation of the buyer (see, People v Herring, 83 NY2d 780, 782; People v Smith, 247 AD2d 781).

We agree with County Court's...