PEOPLE v. VASQUEZ (2001)

Judgment, Supreme Court, New York County (Dora Irizarry, J.), rendered March 2, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1]), and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously reversed, on the law, and the matter remanded for a new trial.

Defendant's request for an agency charge should have been granted, because a reasonable view of the evidence could support the inference that he was acting as an agent of the undercover officer (see, People v. Argibay, 45 N.Y.2d 45, 53-55, 407 N.Y.S.2d 664, 379 N.E.2d 191, cert. denied sub nom., Hahn-DiGuiseppe v. New York, 439 U.S. 930, 99 S.Ct. 317, 58 L.Ed.2d 323;  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. Roche, 45 N.Y.2d 78, 86, 407 N.Y.S.2d 682, 379 N.E.2d 208, cert. denied, 439 U.S. 958, 99 S.Ct. 359, 58 L.Ed.2d 350;  People v. Butts, 72 N.Y.2d 746, 750, 536 N.Y.S.2d 730, 533 N.E.2d 660).   The People argue that the judgment should be affirmed because:  the undercover officer and defendant were complete strangers;  defendant revealed a relationship with the drug culture by recognizing “D” as a street name for heroin and offering to get the undercover the two glassine envelopes he had requested;  and defendant also revealed a fear of apprehension by asking the undercover whether he was a cop.   Were this all there was, the denial of an agency charge would have been proper (see, People v. Vasquez, 253 A.D.2d 728, 678 N.Y.S.2d 259;  People v. Herring, 83 N.Y.2d 780, 783, 610 N.Y.S.2d 949, 632 N.E.2d 1272).

In this case, however, there is more.   Defendant approached the undercover officer asking for a cigarette, and the officer gave him one.   The officer then asked him to get drugs, giving the defendant $20.00.   As defendant was about to leave to get the drugs, the officer asked him for security, and defendant gave him a pouch containing identification.   Defendant did not hawk drugs or solicit customers.   He did not tout the quality of the drugs or engage in any salesman-like behavior.   The transaction proceeded at a leisurely pace.   In addition, neither pre-recorded money nor drugs were found on defendant when he was almost immediately arrested.   Under these circumstances, a jury could reasonably conclude defendant intended only to reciprocate the undercover officer's favor by obtaining the drugs he requested, and was acting as his agent.