Senate Bill S4519

                                BILL NUMBER:S4519

TITLE OF BILL:
An act
to amend the penal law, in relation to the law of agency

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her
Advisory Committee on Criminal Law and Procedure.

This measure would codify the defense of agency in the Penal Law. This
measure also would counter the result in People v Davis, (14 NY3d 446
(2009)) by authorizing a court to submit a charge of criminal
possession of a controlled substance in the seventh degree where a
defendant interposes an agency defense to the charge of having sold a
controlled substance and where there is a reasonable view of the
evidence that the defendant possessed the controlled substance
allegedly sold.

The agency defense has long provided that a person who acts solely as
an agent of the buyer in a narcotics transaction cannot be convicted
of the crime of selling narcotics or of possessing them with intent
to sell (People v Lam Lek Chong, 45 NY2d 64 (1978)).(1)
It is not a
complete defense. Agency furnishes no defense to the charge of mere
possession of a controlled substance. People v Ortiz, 76 NY2d 446
              

(1990). This is so because the agency defense only negates the
element of sale or intent to sell. When a person acts solely for the
benefit of the buyer of narcotics in a transaction, the Court of
Appeals has held that the person is simply an agent transferring to
the recipient that which the recipient in effect already owns or is
entitled to and thus the agent neither makes nor intends to make a
sale, exchange, gift or disposal of narcotics to the recipient.
People v Sierra, 75 NY2d 56 (1978). The defense is not meant to
relieve the agent of all
responsibility; the Penal Law is directed primarily at sellers instead
of purchasers and generally imposes more severe penalties on the
seller than upon the buyer in a drug transaction. People v Ortiz, 76
NY2d 446; see also People v Feldman, 50 NY2d 500 (1990). The agency
defense has the virtue of being consistent with the statutory
framework because it requires the one who acts as the agent of the
buyer incur criminal liability that is no greater than that of the
buyer. Id.

In Davis, the Court of Appeals reaffirmed the rationale of the agency
defense, but nonetheless limited its scope. It held that because it
is possible to sell drugs without concomitantly possessing them,
criminal possession of a controlled substance in the seventh degree
is not a lesser included offense of criminal sale of a controlled
substance.
Prior to Davis, however, it was common practice in many courts
throughout the state to submit a charge of criminal possession of a
controlled substance in the seventh degree to a jury whenever the
defendant put the issue of agency into the case. This practice
provided a fair opportunity for the jury to hold a defendant
accountable for the criminal conduct the defendant normally concedes


by interposing an agency defense; namely, the criminal conduct of the
buyer. Following Davis, juries will rarely be given the opportunity
to decide whether the defendant who presents an agency defense is
guilty of a sale or, if the defense is accepted, possession of the
narcotics. Instead, the jury must decide between convicting the
defendant of the sale count, or acquitting completely of the charge
associated with that count. As the dissent in Davis noted, this
circumstance has the effect of undermining the agency defense. The
jury will be asked to weigh the testimony that the defendant was an
agent of the buyer without having the ability to convict the
defendant of the charge the defendant either tacitly or explicitly
admitted.
The jury is likely to either give less credence to the agency
testimony or to convict of the charge submitted because the jury does
not wish to see a culpable defendant set completely free.

Both the prosecution and defense have an interest in seeing that a
defendant's culpability is properly determined in cases involving
the agency defense. This measure codifies the agency defense as an
affirmative defense and permits the submission of criminal possession
of a controlled substance whenever the defendant puts the defense in
issue and there is a reasonable view of the evidence to support it.
The measure also provides alternative provisions depending upon the
drug sold. When the transaction involves the sale of a controlled
substance, the appropriate lesser charge will be criminal possession
of a controlled substance in the seventh degree. However, when the
sale involves marihuana, the interests of justice may vary and the
appropriate possession charge will turn on whether there is a
reasonable view of the evidence supporting that lesser charge. The
measure thus provides the court with the traditional discretion to
submit the possession charge that most closely corresponds with the
facts adduced at trial.

Finally, the measure recognizes that the prosecution or the defense
may wish to avoid the circumstance in which the jury is presented
with an all or nothing choice concerning the agency defense and it
gives each of them the right to request that the lesser charge go to
the jury. It requires, however, that the election be made before the
deliberation begins so that the parties are not able to engage in
gamesmanship that would permit them to abandon a strategy based on
developments during a jury's deliberation.

This measure, which would have no meaningful fiscal impact on the
State, would take effect 30 days after it shall have become law.

2011 Legislative History:
None. New proposal.

FOOTNOTE:
(1) The defense applies equally to the charges of selling marihuana
found P.L. §§221.35 to 221.55.