People v. Sierra

Decision Date15 June 1978
Citation45 N.Y.2d 56,379 N.E.2d 196,407 N.Y.S.2d 669
Parties, 379 N.E.2d 196 The PEOPLE of the State of New York, Respondent, v. Hilda SIERRA, Appellant.
CourtNew York Court of Appeals Court of Appeals

COOKE, Judge.

We reiterate here that which has been stated before, although not without some controversy, and that which should be readily apparent from legal as well as logical analyses that the existence of an agency relationship furnishes no defense upon a charge for the mere criminal possession of a controlled substance, knowingly and unlawfully possessed. 1

This proposition obtains regardless of whether the charged possession involves a minimum separate quantity or aggregate amount of such a substance or substances (see Penal Law, §§ 220.03, 220.06, subds. 2, 3; §§ 220.09, 220.16, subds. 8, 9, 10, 11; §§ 220.18, 220.21), and even where the accusation of possession of certain specific controlled substances is predicated also on a previous conviction for possession of one or more of those named substances (see Penal Law, § 220.12). It would not apply, however, where the possession charged also encompasses another element, such as an intent to sell (see Penal Law, § 220.06, subd. 1; § 220.16, subds. 1-7).

Defendant Hilda Sierra was indicted in New York County on December 6, 1973, charged with criminal sale of a controlled substance in the second degree (Penal Law, § 220.41), criminal possession of controlled substance in the third degree (Penal Law, § 220.16), and criminal possession of a controlled substance in the fifth degree (Penal Law, § 220.09), all allegedly committed on October 18, 1973. 2 During the evening of the day in question, defendant was a barmaid at a dimly lit bar and grill known as "Angel's Place", located in the lower east side of Manhattan. There was proof that on that occasion, at the request of undercover Police Officer Guerzon for some cocaine and upon delivery of $195 to defendant, she left the bar and upon return handed him a clear plastic bag containing white powder, later analyzed as weighing in excess of one eighth of an ounce and containing cocaine. The officer also related that he first handed her $175, the cost of the "coke", that defendant asked, "Well, I am doing you a favor, now what do I get for doing you a favor?", whereupon he gave her the additional $20.

The trial court submitted to the jury for its consideration the first and third counts, thus omitting the one charging a violation of section 220.16. Agency defense instructions were given in respect to the first count, the sale count but defendant's request for a similar charge as to the possessory count was denied. Instead, the jury was instructed that agency was not to be considered as a defense to the third count, to which an exception was taken. A partial verdict finding defendant guilty of the third count, criminal possession of a controlled substance in the fifth degree, was rendered and, the jury being unable to agree as to the sale count, a mistrial was declared with respect to it and that count was thereafter dismissed.

To sustain a conviction for the crime of possession of a controlled substance, in its simplest form, the prosecution must prove beyond a reasonable doubt the presence of a controlled substance as statutorily defined, that it was physically or constructively possessed by the accused and that the possession was knowing and unlawful (Penal Law, § 10.00, subd. 8; §§ 220.03, 220.00; CPL 300.10, subd. 2). As indicated, other offenses of mere possession include the further components of required quantities of certain specific controlled substances, and one felony contains the predicate of a prior conviction. Obviously, the common denominator of these possessory offenses is possession, defined by statute as "physical possession or otherwise to exercise dominion or control over tangible property" and judicially interpreted as encompassing the doctrine of constructive possession, as well as physical possession (Penal Law, § 10.00, subd. 8; People v. Diaz, 41 A.D.2d 382, 384, 343 N.Y.S.2d 474, 476, affd. 34 N.Y.2d 689, 356 N.Y.S.2d 295, 312 N.E.2d 478; see Hechtman, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 39, p. 21 (1977-1978 Cumulative Supp.)). "Knowledge * * * may be shown circumstantially by conduct or directly by admission, or indirectly by contradictory statements from which guilt may be inferred * * * (and) (g) enerally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands, on his person, in his vehicle, or on his premises" (People v. Reisman, 29 N.Y.2d 278, 285, 327 N.Y.S.2d 342, 348, 277 N.E.2d 412, 418).

Defendant presses for reversal and a new trial, contending that the defense of agency, charged as to the sale count, was equally applicable to the possession count of which she was found guilty. In drug cases, this defense, undefined by statute, first received judicial recognition in the Federal courts in 1954 United States v. Sawyer, 4 Cir., 210 F.2d 169, 170) and made its first published appearance in the courts of this State the following year (People v. Buster, 286 App.Div. 1141, 145 N.Y.S.2d 437), in each instance in the context of a sale. Although articulated variously, a recent New York enunciation is that "one who acts on behalf of a purchaser of drugs cannot be convicted of criminal sale of a controlled substance, or of criminal possession thereof with intent to sell" (People v. Perez, 60 A.D.2d 656, 400 N.Y.S.2d 559, 560; see, also, People v. Argibay, 45 N.Y.2d 45, 53, 407 N.Y.S.2d 664, 667-668, 379 N.E.2d 191, 194-195 (decided herewith); People v. Lam Lek Chong, 45 N.Y.2d 64, 73, 407 N.Y.S.2d 674, 679, 379 N.E.2d 200, 205-206 (decided herewith); People v. Roche, 45 N.Y.2d 78, 82, 407 N.Y.S.2d 682, 684-685, 379 N.E.2d 208, 210-211 (decided herewith); People v. Johnston, 47 A.D.2d 897, 900, 366 N.Y.S.2d 198, 202; 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. Branch, 13 A.D.2d 714, 213 N.Y.S.2d 535). The underlying theorization is that a person, who acts solely on behalf of the recipient of the drugs in a transaction, performs as an extension of the recipient and cannot be guilty of a sale, since that person is merely transferring to the recipient that which the recipient already owns or that to which he is entitled, there being no sale, exchange, gift or disposal of the drugs to the recipient (See United States v. Barcella, 2 Cir., 432 F.2d 570, 571; see, also, Penal Law, § 220.00, subd. 1; People v. Pasquarello, 282 App.Div. 405, 123 N.Y.S.2d 98, affd. 306 N.Y. 759, 118 N.E.2d 361; Donnino and Girese, The Agency Defense in Drug Cases, NYLJ, April 27, 1978, p. 1, col. 2).

Conceptually, the theory does not fit within the ambit of mere possession, as distinguished from possession with intent to sell, since the former contains no element pertaining to or any exception in respect to an agent or person possessing on behalf of another. Significantly, crimes of possession of controlled substances do not depend upon notions of ownership or title (Penal Law, § 10.00, subd. 8; United States v. Sawyer, 4 Cir., 294 F.2d 24, 29). There is no requirement that the prosecution prove that an accused has title to the contraband since guilt may be established regardless of whether it belongs to someone else. Indeed, there is a marked distinction between possession and ownership, to the extent that one may possess a chattel or thing without being its owner and, conversely, may own something without possessing it (People v. Matthews, 18 Ill.2d 164, 170, 163 N.E.2d 469). Parenthetically, although proof of title, interest or even equity in or claim to the controlled substance is not essential, testimony in that direction might be relevant to the subject of possession, particularly where it is constructive in nature (see Bernheim, Defense of Narcotic Cases (1977 rev.), § 1.10; cf. Rawley v. Brown, 71 N.Y. 85, 89).

Defendant next advances the point that her contact with the cocaine was but transitory and passive and that her receipt of it from the seller, on Guerzon's behalf, and her turning it over to him immediately did not transform her into a principal. Crimes of possession of a controlled substance include but make no allowance or exception for fleeting or momentary contact. This idea of "brief handling" as an exemption from or defense to prosecution, given proof of the necessary elements, has been rejected consistently (People v. Martin, 52 A.D.2d 988, 989, 383 N.Y.S.2d 425, 426; People v. Paranzino, 47 A.D.2d 878, 366 N.Y.S.2d 440, affd. 40 N.Y.2d 1005, 391 N.Y.S.2d 391; People v. Thomas, 42 A.D.2d 1019, 348 N.Y.S.2d 244; People v. Burke, 25 A.D.2d 691, 268 N.Y.S.2d 163; Bernheim, Defense of Narcotic Cases (1977 rev.) § 1.17, p. 1-196). The instant defendant came into the physical possession of the cocaine, she had control over it so that she could have delivered it, discarded it, destroyed it or retained it, and she elected the first of these alternatives; pointedly, she never rejected it (see Commonwealth v. Harvard, 356 Mass. 452, 457-458, 253 N.E.2d 346).

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