People v. Starling

• Decision Date: 27 April 1995
• Citation: 85 N.Y.2d 509,626 N.Y.S.2d 729,650 N.E.2d 387
• Parties: , 650 N.E.2d 387 The PEOPLE of the State of New York, Respondent, v. Jerry STARLING, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 729

626 N.Y.S.2d 729

85 N.Y.2d 509, 650 N.E.2d 387

The PEOPLE of the State of New York, Respondent, v. Jerry STARLING, Appellant.

Court of Appeals of New York.

April 27, 1995.

Brian S. Drier, Matthew Muraskin, Kent V. Moston and Robert M. Bornstein, Hempstead, for appellant.

Denis Dillon, Dist. Atty. of Nassau County, Mineola (Margaret E. Mainusch and Peter A. Weinstein, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

This appeal presents the question whether, without evidence of an accompanying transfer of money or other consideration, a "handoff" of narcotics between two individuals to avoid police detection constitutes a "sale" within the meaning of Penal Law § 220.00(1). Relying on the broad language of the definition of "sell" contained in Penal Law § 220.00(1), we hold that it does, and affirm defendant's conviction.

Shortly after midnight on June 15, 1990, police officers observed defendant standing on a Nassau County street corner holding a small paper bag. The police saw defendant pass something from the bag to an unknown third party in return for what appeared to be paper currency, and the unknown person departed. As the officers exited their vehicle and began to approach defendant, defendant handed the bag to a juvenile standing adjacent to him. The juvenile walked up the street, followed by one of the officers. After the juvenile discarded the bag by sticking it in a fence, the officer retrieved it and found that it held seven plastic ziplock bags containing cocaine. Defendant was then arrested, and $376 was recovered from defendant's pants pocket during a search incident to the arrest.

Based on the transfer of the drugs to the juvenile, defendant was charged by indictment with criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1]. The indictment also charged defendant with criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1], or "possession with intent to sell."

After the People rested, defendant moved for a trial order of dismissal for legal insufficiency on both counts of the indictment. As to count one, counsel argued that the People failed to prove that a "sale" had actually occurred. In support of that argument, counsel stated that the People had only proven that defendant had something in his hand that was taken by another, and that such conduct could not constitute a sale of a controlled substance. The People opposed this branch of the motion on the ground that under the Penal Law, the passing of the bag containing narcotics constituted a sale. Counsel moved to dismiss count two of the indictment, criminal possession of a controlled substance in the third degree, on the ground that the People had not proven that defendant "intended" to sell drugs, but only that he possessed them. The court denied the applications.

During the charge conference, defense counsel requested that a charge be given explaining that the terms "to give or dispose of" contained in the Penal Law definition of "sell" were not intended to encompass a transfer to a person who jointly or constructively possessed the drugs with the defendant. Counsel also requested that the court charge the jury that a temporary transfer of a controlled substance, without the intent that the recipient use it or benefit from its possession, is not a sale. The court denied defendant's requests, ruling that they were not supported by any precedent or by the language of the statute.

Relying verbatim on the Penal Law definition of "sell" contained in section 220.00(1), the court defined that term for the jury as "to sell, exchange, give or dispose of to another, or to offer or agree to do the same." The court also charged the jury that defendant could be convicted of the second count of the indictment if he "knowingly and unlawfully possessed * * * cocaine with the intent to sell it." Following the court's instructions to the jury, defense counsel objected to the court's definition of "sell" and unsuccessfully renewed her prior charge requests.

During deliberations, the jury sent a note requesting a read- of the definition of "sale." The court read the note aloud before counsel and defendant. Defense counsel again requested the additional instructions that she had requested at the charge conference. The court denied the request on the ground that counsel could provide no authority to support her definition of sale. Some time later, the jury sent its second note requesting a rereading of the second count of the indictment, including the definition of intent. Within another hour the jury sent note three, which requested "two readings of the definition of intent." On both occasions, the court read the note verbatim in the presence of the jury, counsel and defendant and proceeded to reread the same definition of intent it had previously given. Defendant did not lodge any objection to the manner of proceeding or to the substance of the court's responses. The jury found defendant guilty on both counts of the indictment.

The Appellate Division affirmed, concluding that the court's instructions on the relevant definitions were proper, and that defendant's remaining claims either lacked merit or were unpreserved. A Judge of this Court granted defendant's application for leave to appeal, and we now affirm.

Defendant was found guilty of criminal sale of a controlled substance in the third degree pursuant to Penal Law § 220.39(1), which defines that crime as occurring when one "knowingly and unlawfully sells" a narcotic drug. The term "sell" is defined in section 220.00(1) as "to sell, exchange, give or dispose of to another, or to offer or agree to do the same."

By enacting a broad definition of the term "sell" to embrace the acts of giving or disposing of drugs, the Legislature has evinced a clear intent to "include any form of transfer of a controlled substance from one person to another" (Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law art 220, at 14). The statutory definition of that term conspicuously excludes any requirement that the transfer be commercial in nature or conducted for a particular type of benefit or underlying purpose (see, People v. Lam Lek Chong, 45 N.Y.2d 64, 72, 407 N.Y.S.2d 674, 379 N.E.2d 200). Because the Legislature has chosen to supply its own definition of the term "sell" which "is expanded well beyond the ordinary meaning" of that term (People v. Milom, 75 A.D.2d 68, 71, 428 N.Y.S.2d 678), the trial court, in charging the jury here, properly declined to supplement that definition with defendant's proffered dictionary definition of "sell," which denotes a transaction that is commercial in flavor (see, Black's Law Dictionary 1200 [5th ed].

In recognition of the reality that the exchange of money and drugs may take place at different times and places through a sophisticated network of principals and intermediaries, this Court has concluded that "proof of the transfer of the drugs alone may suffice to prove the sale" (People v. Lam Lek Chong, 45 N.Y.2d 64, 72, 407 N.Y.S.2d 674, 379 N.E.2d 200, supra). Indeed, the laws prohibiting narcotics sales encompass the actions of a "middleman," who acts as a broker between the seller and the buyer (see, People v. Argibay, 45 N.Y.2d 45, 50, 407 N.Y.S.2d 664, 379 N.E.2d 191) and whose role in the transaction may go no farther than that of a deliverer of the narcotics. Fundamentally, a "defendant may be...