People v. Roche

• Decision Date: 15 June 1978
• Citation: 45 N.Y.2d 78,407 N.Y.S.2d 682,379 N.E.2d 208
• Parties: , 379 N.E.2d 208 The PEOPLE of the State of New York, Appellant-Respondent, v. Antonio ROCHE, Respondent-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 682

407 N.Y.S.2d 682

45 N.Y.2d 78, 379 N.E.2d 208

The PEOPLE of the State of New York, Appellant-Respondent, v. Antonio ROCHE, Respondent-Appellant.

Court of Appeals of New York.

June 15, 1978.

Mario Merola, Dist. Atty. (Leonard G. Kamlet, Flushing, and Billie Manning, New York City, of counsel), for appellant-respondent.

Lawrence A. Vogelman and William E. Hellerstein, New York City, for respondent-appellant.

OPINION OF THE COURT

FUCHSBERG, Judge.

Today this court reaffirms the established New York rule that one who acts solely as the agent of a purchaser of narcotics cannot be convicted of the crime of criminal sale of a controlled substance. Having thus determined that the abolition of that defense would be an unwarranted departure from the decisional law of this State, we must decide in the present case whether, under a reasonable view of the evidence adduced at trial, the jury should have been charged on that question.

The proof in this case, essentially undisputed, was garnered by an undercover police officer, Sylvio Lugo, who struck up a friendship with the defendant, Antonio Roche, after initially encountering him as a fellow patron at various bars. In the course of one of their later meetings, Lugo mentioned that he was interested in making a purchase of narcotics. Roche indicated that he might be of assistance in doing so and invited Lugo to telephone him for that purpose if he so desired. After Lugo's subsequent attempts to follow up were unsuccessful, he sought out Roche at a bar and advised him that he had indeed decided to buy cocaine or heroin. In the course of this conversation, he told Roche that he had in mind an "eighth" (approximately four ounces); Roche estimated the cost of such a quantity at between three and four thousand dollars, depending on its quality and who the seller was.

It was not, however, until the better part of two months had gone by that Lugo telephoned Roche to tell him that he was in a hurry to make an immediate purchase. From The Bronx, where they then met at Roche's request, they proceeded at the latter's direction to Les Nanettes Bar in Manhattan, using Lugo's car. There Roche entered the premises alone, presumably to "see the man" who was the seller. Upon returning to Lugo, who had been waiting in the car, he reported that things had been arranged and that the price would be $4,000. Lugo thereupon handed that sum in cash to Roche who, again alone, re-entered Les Nanettes with it and in a few minutes was back to advise Lugo that the actual delivery of the drugs would take place at a discotheque called the Cheetah.

At the Cheetah, Lugo remained in an upstairs bar area while Roche went to the floor below. As he waited, Lugo observed a shabbily dressed man enter the lower level of the premises with a newspaper under his arm. From Lugo's vantage point, he was able to observe this man remove a white paper bag from the folds of the newspaper and hand it to Roche, who placed it in his waistband. Roche then walked upstairs and, in turn, gave the package to Lugo. Police analysis was to reveal it contained heroin.

About 10 days later, Lugo in the course of a telephone conversation with Roche, complained about the quality of the narcotics. Roche chided Lugo for not having said something about it earlier. The record does not indicate that there was any request or suggestion for adjustment.

Roche was subsequently indicted for criminal sale of a controlled substance in the first degree (Penal Law, § 220.43) and criminal possession of a controlled substance in the first degree (Penal Law, § 220.21). At Nisi prius, defense counsel's request for an instruction on agency was denied, the trial court ruling that there was no evidence to support such a contention. A divided Appellate Division, finding that there was such proof, modified by reversing the conviction for criminal sale and directing a new trial on that count; it affirmed the conviction for criminal possession. The case is now here on cross appeals. On this record, we believe the Appellate Division's determination should be upheld.

As noted in People v. Sierra, 45 N.Y.2d 56, 407 N.Y.S.2d 669, 379 N.E.2d 196, People v. Lam Lek Chong, 45 N.Y.2d 64, 407 N.Y.S.2d 674, 379 N.E.2d 200 and People v. Argibay, 45 N.Y.2d 45, 407 N.Y.S.2d 664, 379 N.E.2d 191, the underlying theory of the agency defense in drug cases is that one who acts as procuring agent for the buyer alone is a principal or conspirator in the purchase rather than the sale of the contraband. ¹ Since the thrust of our statutes, as consistently construed, is not directed against purchasers, an individual who participates in such a transaction solely to assist a buyer and only on his behalf, incurs no greater criminal liability than does the purchaser he aids and from whom his entire standing in the transaction is derived. Specifically, without more he may not be treated as an accomplice of the seller (see People v. Pasquarello, 282 App.Div. 405, 123 N.Y.S.2d 98, affd. 306 N.Y. 759, 118 N.E.2d 361; see, also, People v. Catterall, 5 Wash.App. 373, 486 P.2d 1167; 23 C.J.S Criminal Law § 798 (16), (18), (20)). Of course, such a role is not to be confused with that of a middleman be he a jobber or any other category of merchant trading in narcotics, or a broker furthering his own interests by serving both seller and buyer who thus essentially acts for himself rather than merely as an extension of the buyer (People v. Argibay, supra, 45 N.Y.2d p. 53, 407 N.Y.S.2d pp. 667-668, 379 N.E.2d pp. 194-195).

Concededly, the introduction of the term "agency" into the lexicon of the law governing drug prosecutions at most carries with it limited application of concepts which govern its use in defining relationships and responsibilities more characteristic of the world of commerce and property (People v. Argibay, supra, p. 53, 407 N.Y.S.2d pp. 667-668, 379 N.E.2d pp. 194-195). Blunt acknowledgement of that fact would lessen consequent confusion. As a practical matter, it lends an element of flexibility to the resolution, by Judge or jury, of the relationship to a particular drug transaction of certain of the wide variety of participants who do not neatly fit into the mold of buyer or seller. These range along a spectrum reaching all the way from those whose predatory and profit-laden motives spell out the unmistakably dominant parts they play in such transactions, to those at the far end who may include persons as diverse as impressionable students, victims of contributing socioeconomic or medical problems, and others who have been seduced by exposure to drugs to fall into a state of dependency on them.

It is therefore not to be assumed that all those who engage in procurement of illegal drugs are motivated by a criminal disposition rather than a desire to satisfy a personal craving to feed an irresistible habit or to aid one so afflicted. Thus, the "agency defense" in good part may be seen as a common-law attempt, in appropriate cases, to recognize the existence of medical and sociological aspects which complicate the factual setting within which the nature of a particular defendant's participation is to be determined.

Perhaps it was out of a recognition of this problem that, just as it has chosen to leave the act of buying drugs unprohibited by the criminal law, the Legislature has also left the agency defense inviolate. Given the accelerated and massive legislative attention that the narcotics laws have received within the last decade, and the fact that our Legislature has chosen to punish drug trafficking more severely than has any other jurisdiction ² (People v. Broadie, 37 N.Y.2d 100, 116, 371 N.Y.S.2d 471, 480, 332 N.E.2d 338, 345, cert. den. 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287; Carmona v. Ward, 576 F.2d 405, (Oakes, J., dissenting)), we must assume that its acceptance of the defense represents a calculated and ameliorative judgment not to impose such penalties upon a person who merely facilitates the acquisition of drugs by a purchaser (People v. Chong, supra, 45 N.Y.2d p. 74, 407 N.Y.S.2d p. 680, 379 N.E.2d p. 206).

Moreover, the agency defense rarely, if ever, is credited by the fact finder in the predator case. Not surprisingly, examination of the existent literature on drug prosecutions discloses no suggestion that the assertion of that defense in such profit-laden circumstances leads to any noticeable number of acquittals.

This does not mean that the agency defense is a broad brush to be laid on indiscriminately. It goes without saying that, in order to fall within its sweep, the agent must have no direct interest in the contraband being sold. His function must be performed without any profit motive (compare People v. Wright, 20 A.D.2d 652, 246 N.Y.S.2d 250, affd. 15 N.Y.2d 555, 254 N.Y.S.2d 368, 202 N.E.2d 910, with 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). If he is in fact interested in the outcome, either by ownership of the property or by an agency relationship with the seller, he fails, by definition, to be an agent for the purchaser (see People v. Chong, supra; People v. Argibay, supra ).

Where the defense is raised, it is incumbent to focus on the parties' conduct during the transaction. Salesman-like behavior, commonly connoting an interest that goes beyond representation of the buyer alone, may include touting the quality of the product (see United States v. Smith, 8 Cir., 452 F.2d 404; cf. United States v Johnson, 3 Cir., 371 F.2d 800, 806-807), bargaining over price (United States v. Winfield, 2 Cir., 341 F.2d 70, 71; cf. People v. Harris, 24 N.Y.2d 810, 300 N.Y.S.2d 589, 248 N.E.2d 444) and apologizing for the quality of drugs or the manner of their delivery (United States v. Winfield, supra, p. 71). Previous acquaintance with the supplier, or with narcotics in general, though of lesser import, may also be taken into account (cf. People v. Jenkins, 41...