S4519-2011 Actions

• Jan 4, 2012: REFERRED TO CODES
• Apr 8, 2011: REFERRED TO CODES

S4519-2011 Memo

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.

S4519-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         4519
 2011-2012 Regular Sessions
 I N  SENATE
 April 8, 2011
 
 Introduced by Sen. SALAND -- (at request of the Office of Court Adminis
 tration)  --  read  twice  and ordered printed, and when printed to be
 committed to the Committee on Codes
 

AN ACT to amend the penal law, in relation to the law of agency
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section  1.  The penal law is amended by adding a new section 40.20 to
 read as follows:

 

S 40.20 AGENCY.
 1. A PERSON WHO ACTS SOLELY AS AN AGENT OF THE BUYER IN A  SALE  OF  A
 CONTROLLED  SUBSTANCE  CANNOT  BE CONVICTED OF THE CRIME OF SELLING THAT
 CONTROLLED SUBSTANCE OR OF POSSESSING IT WITH INTENT TO SELL.
 2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SUBDIVISIONS  THREE  OR
 SIX  OF SECTION 300.40 OF THE CRIMINAL PROCEDURE LAW, WHEN THE DEFENDANT
 PLACES IN ISSUE AT TRIAL THAT HE OR SHE LACKS CULPABILITY  FOR  SELLING,
 OR  POSSESSING WITH INTENT TO SELL, A CONTROLLED SUBSTANCE, AND THERE IS
 A REASONABLE VIEW OF THE EVIDENCE TO SUPPORT THE CLAIM, AS PROVIDED  FOR
 IN  THE  PRECEDING  SUBDIVISION,  THAT  THE  DEFENDANT,  WHEN  HE OR SHE
 POSSESSED THE CONTROLLED SUBSTANCE SOLD, WAS ACTING SOLELY AS  AN  AGENT
 OF THE BUYER:

 (A) THE DEFENDANT IS ENTITLED, UPON REQUEST, TO HAVE THE JURY CONSIDER
 THE  CRIME  OF  CRIMINAL  POSSESSION  OF  A  CONTROLLED SUBSTANCE IN THE
 SEVENTH DEGREE DURING  ITS  DELIBERATION.  IF  THE  DEFENDANT  FAILS  TO
 REQUEST SUCH A CHARGE BEFORE THE JURY RETIRES TO BEGIN ITS DELIBERATION,
 THE  RIGHT  TO  HAVE  THE  JURY  CONSIDER IT IS WAIVED AND ANY RESULTING
 CONVICTION MAY NOT THEREAFTER BE CHALLENGED ON THE GROUND THE  JURY  DID
 NOT  CONSIDER  CRIMINAL  POSSESSION  OF  A  CONTROLLED  SUBSTANCE IN THE
 SEVENTH DEGREE.
 (B) THE PROSECUTOR IS ENTITLED, UPON REQUEST, TO HAVE THE JURY CONSID
 ER THE CRIME OF CRIMINAL POSSESSION OF A  CONTROLLED  SUBSTANCE  IN  THE
 SEVENTH  DEGREE.  IF  THE  PROSECUTOR FAILS TO MAKE A REQUEST BEFORE THE
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD09517-01-1
 
       S. 4519                             2
 JURY RETIRES TO DELIBERATE, THE RIGHT TO  HAVE  THE  JURY  CONSIDER  THE
 SEVENTH DEGREE POSSESSION CHARGE IS WAIVED.
 (C)  WHEN  THE  COURT  SUBMITS  CRIMINAL  POSSESSION  OF  A CONTROLLED
 SUBSTANCE IN THE SEVENTH DEGREE PURSUANT TO THIS  SECTION,  THE  OFFENSE
 SHALL BE CONSIDERED A LESSER INCLUDED OFFENSE WITH REGARD TO THE GREATER
 OFFENSE UNDER WHICH IT IS CHARGED.
 3.  A  PERSON  WHO ACTS SOLELY AS AN AGENT OF THE BUYER IN THE SALE OF
 MARIHUANA CANNOT BE CONVICTED OF THE CRIME OF SELLING THAT MARIHUANA.
 4. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SUBDIVISIONS  THREE  OR
 SIX  OF SECTION 300.40 OF THE CRIMINAL PROCEDURE LAW, WHEN THE DEFENDANT
 PLACES IN ISSUE AT TRIAL THAT HE OR SHE LACKS CULPABILITY  FOR  SELLING,
 OR  POSSESSING  WITH INTENT TO SELL, MARIHUANA AND THERE IS A REASONABLE
 VIEW OF THE EVIDENCE TO SUPPORT THE CLAIM, AS PROVIDED IN THE  PRECEDING
 PARAGRAPH,  THAT  THE  DEFENDANT, WHEN HE OR SHE POSSESSED THE MARIHUANA
 SOLD, WAS ACTING SOLELY AS AN AGENT OF THE BUYER:

 (A) THE DEFENDANT IS ENTITLED, UPON REQUEST, TO HAVE THE JURY CONSIDER
 THE APPROPRIATE LESSER OFFENSE OF CRIMINAL POSSESSION  OF  MARIHUANA  AS
 DEFINED  BY  SECTION  221.10,  221.15,  221.20 OR 221.25 OF THIS CHAPTER
 DURING ITS DELIBERATIONS. THE TRIAL COURT SHALL IN ITS DISCRETION SUBMIT
 THE MOST APPROPRIATE CLASSIFICATION OF THE MARIHUANA CHARGE BASED UPON A
 REASONABLE VIEW OF THE  EVIDENCE  ADMITTED  DURING  THE  TRIAL.  IF  THE
 DEFENDANT FAILS TO REQUEST A MARIHUANA POSSESSION CHARGE BEFORE THE JURY
 RETIRES  TO  BEGIN ITS DELIBERATION, THE RIGHT TO HAVE THE JURY CONSIDER
 IT IS WAIVED AND ANY RESULTING CONVICTION MAY NOT  THEREAFTER  BE  CHAL
 LENGED ON THE GROUND THE JURY DID NOT CONSIDER SUCH A CHARGE.
 (B) THE PROSECUTOR IS ENTITLED, UPON REQUEST, TO HAVE THE JURY CONSID
 ER THE APPROPRIATE LESSER OFFENSE OF CRIMINAL POSSESSION OF MARIHUANA AS
 DEFINED  BY  SECTION  221.10,  221.15,  221.20 OR 221.25 OF THIS CHAPTER
 DURING ITS DELIBERATIONS. THE TRIAL COURT SHALL IN ITS DISCRETION SUBMIT
 THE MOST APPROPRIATE CLASSIFICATION OF THE MARIHUANA CHARGE BASED UPON A
 REASONABLE VIEW OF THE EVIDENCE ADMITTED DURING THE TRIAL. IF THE PROSE
 CUTOR FAILS TO MAKE A REQUEST BEFORE THE JURY RETIRES TO DELIBERATE, THE
 RIGHT TO HAVE THE JURY CONSIDER THE SEVENTH DEGREE POSSESSION CHARGE  IS
 WAIVED.
 (C)  WHEN  THE COURT SUBMITS CRIMINAL POSSESSION OF MARIHUANA PURSUANT
 TO THIS SECTION, THE OFFENSE  SHALL  BE  CONSIDERED  A  LESSER  INCLUDED
 OFFENSE WITH REGARD TO THE GREATER OFFENSE UNDER WHICH IT IS CHARGED.
 

S 2. This act shall take effect thirty days after it shall have become
 a  law  and  shall  apply to all pending trials where jury deliberations
 have not yet commenced.

*By contributing or voting you agree to the Terms of Participation and Privacy Policy and verify you are over 13.

Discuss!