People v. Sundholm

• Decision Date: 12 July 1977
• Citation: 58 A.D.2d 224,396 N.Y.S.2d 529
• Parties: PEOPLE of the State of New York, Respondent, v. Martin Wayne SUNDHOLM, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 529

396 N.Y.S.2d 529

58 A.D.2d 224

PEOPLE of the State of New York, Respondent, v. Martin Wayne SUNDHOLM, Appellant.

Supreme Court, Appellate Division, Fourth Department.

July 12, 1977.

William F. Lynn, Syracuse, for appellant.

Richard A. Hennessy, Jr., Dist. Atty., Syracuse (John Cirando, Syracuse, of counsel), for respondent.

OPINION

WITMER, Justice.

On this appeal defendant asserts that the trial court erred in two respects in refusing defendant's request to charge, to wit, as to agency and entrapment.

The evidence was undisputed that on February 5, 1976 defendant, a student at Syracuse University, sold over 1/2 oz. of the drug phencyclidine, also known as P.C.P., to Timothy H. Phinney, an undercover policeman, for the sum of $400, and was thereupon arrested. His defenses were that he was acting as agent of Phinney in procuring the drug and that he had never before engaged in the sale of drugs and was not disposed to do so, but that Phinney, through a Robert Park and Jessie Kapili, also students at Syracuse University, persistent urged him to and entrapped him into making this sale.

Park had been arrested in November, 1975 for possession of marijuana, at which time the police told him that if he could help them out, the charge against him might be reduced or dismissed. On February 5, 1976 Park began cooperating with officer Phinney, in the expectation of receiving lenient treatment for his offense. Three months previously Park had attended a Halloween party in a room occupied by defendant and another student at the University. One Mezner attended that party and he had with him the drug P.C.P. and sold some to Park, who used it. Kapili was also present at this party. He and defendant witnessed this sale. Kapili had known defendant for about a year and had not known him to sell drugs. Mezner and defendant's brother stayed in defendant's room that weekend, and defendant testified that Mezner left a quantity of P.C.P. in the room. Park knew about this. For a period of three months after that party Park frequently asked Kapili whether he could buy some of the drug from defendant, and he asked Kapili to speak to defendant about it. Kapili did so from time to time, and defendant consistently answered that he did not have any to sell, that the quantity in his room was not his, and that he hoped that Mezner would return and get it. Mezner never returned for it, and defendant resisted the efforts of Park, through Kapili, to buy it, until the February incident.

Park had told Kapili that he wanted a large amount of the drug for sale, and eventually he understood Kapili to say that defendant would sell an ounce of it for $500; but it turned out that the price was $400. Park conferred with Officer Phinney on February 5, 1976 and agreed to help make a drug purchase from defendant. It appears that at this time defendant had finally told Kapili to let Park know that defendant had what Park wanted. Park then made arrangements with Kapili for the three of them, including Phinney, to meet Kapili in the latter's room later that afternoon. Park and Phinney took with them $500 of police money, in $20 bills. They met defendant in Kapili's room and, after introductions, Park told defendant that they were there to buy drugs. Defendant produced a test sample for them to examine and sniff. They said that it was acceptable and that they would buy an ounce. The door was locked and defendant left the room and returned in a few minutes with a plastic bag of the drug. Phinney placed on Kapili's bed five piles of five $20 bills. Defendant took four of them and handed the fifth pile back to Phinney, saying that the price was $400. Phinney testified that he told defendant that, "if it moved all right on the street", he would like to buy more, and he asked whether defendant could get more, and defendant said that he could; and defendant added that he had done this before and makes about $50 on each bag that he sells at wholesale; and stated that he got it from a man in Cortland. Defendant was then arrested.

About a week after this transaction the marijuana charge against Park was reduced to disorderly conduct.

Defendant testified that he worked part time at the University to help maintain himself, and that he had not sold, pushed or dealt in drugs; that since Halloween, 1975 Kapili had repeatedly asked him to sell drugs to Park; that only after about three months of importuning by Kapili at the request of Park, and Mezner not having returned to get the drug that he had left in defendant's room, did defendant finally decide to sell it to Park; and did so only to get rid of both Park and the drug. Defendant stated that he did not buy the drug from Mezner or pay for it, nor did he use any of it. He also denied knowing that Park wanted it for resale; and he denied stating to Phinney that he had been selling "the stuff" for profit and that he could get more of it for Phinney.

Defendant's request for a charge on agency, on the theory that he acted only as agent for the police in this transaction, was properly denied. It is true that one who acts solely as agent for the buyer cannot be convicted of selling narcotics and, if any issue of fact is raised as to whether defendant was acting as agent, it must be submitted to the jury (People v. Rankin, 55 A.D.2d 826, 827, 390 N.Y.S.2d 304, 305); and it is error for the trial court to refuse to charge that if they find that defendant was acting as agent, they must acquit him (People v. Lothin, 48 A.D.2d 932, 369 N.Y.S.2d 532; People v. Hool, 46 A.D.2d 912, 363 N.Y.S.2d 12). Such cases, however, involved facts where defendants procured the drugs from a third person seller (see People v. Harris, 28 A.D.2d 1174, 284 N.Y.S.2d 638, affd. 24 N.Y.2d 810, 300 N.Y.S.2d 589, 248 N.E.2d 444; People v. Rankin, supra ). In this case, although defendant denied that the drug belonged to him, he claimed that it had been abandoned in his room and he assumed control and, in fact,...