People v. Williams

• Decision Date: 30 July 1987
• Citation: 518 N.Y.S.2d 451,132 A.D.2d 892
• Parties: The PEOPLE of the State of New York, Respondent, v. James WILLIAMS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 451

518 N.Y.S.2d 451

132 A.D.2d 892

The PEOPLE of the State of New York, Respondent, v. James WILLIAMS, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 30, 1987.

Francis J. Roche, Hudson, for appellant.

Eugene Keeler, Dist. Atty. (Nancy D. Snyder, of counsel), Hudson, for respondent.

Before MAHONEY, P.J., and KANE, MAIN, CASEY and MIKOLL, JJ.

MAIN, Justice.

Appeal from a judgment of the County Court of Columbia County (Zittell, J.), rendered April 21, 1986, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.

Defendant was indicted for criminal sale of a controlled substance in the third degree as a result of his alleged sale of cocaine to an undercover police officer, Charles Jones, in the City of Hudson, Columbia County, in May 1984. He was convicted of the charge and sentenced to an indeterminate term of 2 1/2 to 12 years' imprisonment. The primary issue for our consideration on this appeal is whether the People proved beyond a reasonable doubt that defendant was not acting as the buyer's agent during the transaction. According to the People, Jones and an informant, Carl Zinnerman, went to several establishments in Hudson on the night in question seeking to purchase illegal drugs. At one of these places, a bar named the Tainted Lady, Jones met defendant, who stated that he could sell Jones cocaine. After defendant spoke to another person for a few minutes, Jones, Zinnerman and defendant entered the men's room, where defendant gave Jones a packet containing cocaine in exchange for $150. Jones testified that defendant told him that the cocaine was very good and, if Jones wanted to see him later, he would "be around".

According to defendant, he had known Zinnerman for a number of years. On the night in question, he met Zinnerman at the Tainted Lady and Zinnerman asked him to buy some cocaine, ostensibly because no one would deal with Zinnerman. Defendant refused. A short time later, defendant testified, Zinnerman attempted to introduce him to Jones and again asked him to buy cocaine. Defendant stated that Zinnerman and he left the bar and went into an alley, where Zinnerman gave him $50. Defendant then went to an apartment in an adjoining building, purchased cocaine with the $50, and returned to the Tainted Lady. Zinnerman and he then entered the men's room, where he delivered the cocaine to Zinnerman. Jones was not present in the men's room.

It is well settled that a person who merely acts as a buyer's agent cannot be convicted of the crime of selling narcotics (People v. Lam Lek Chong, 45 N.Y.2d 64, 73, 407 N.Y.S.2d 674, 379 N.E.2d 200, cert. denied 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331; People v. Dianda, 124 A.D.2d 307, 308, 508 N.Y.S.2d 92, lv. granted 69 N.Y.2d 826, 506 N.E.2d 544). The question of whether a person is acting as an agent is one of fact for the jury (People v. Lam Lek Chong, supra, p. 74, 407 N.Y.S.2d 674, 379 N.E.2d 200; People v. Walton, 119 A.D.2d 889, 500 N.Y.S.2d 844) and is dependent upon a number of factors (see, People v. Gonzales, 66 A.D.2d 828). Considering the evidence presented here in the light most favorable to the People (see, People v. Kennedy, 47 N.Y.2d 196, 203, 417 N.Y.S.2d 452, 391 N.E.2d 288), we are of the opinion that the People did demonstrate that defendant was not acting as an agent. In particular, Jones' testimony...