| People v Nowlan |
| 2015 NY Slip Op 05973 [130 AD3d 1146] |
| July 9, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDavid Nowlan, Appellant. |
The Proler Law Firm, Clifton Park (Andrew J. Proler of counsel), for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered January 29, 2014, upon a verdict convicting defendant of the crimes ofcriminal sale of a controlled substance in the third degree (two counts) and criminalpossession of a controlled substance in the third degree (two counts).
Defendant was indicted on two counts each of criminal sale of a controlled substancein the third degree and criminal possession of a controlled substance in the third degree,stemming from his sale of heroin to a confidential informant (hereinafter CI) on twooccasions in the driveway of his home. At a combined Molineux/Sandovalhearing, defendant stated his intention to assert an agency defense. In anticipation of thatstrategy, County Court ruled that it would permit the People to elicit testimony related todefendant's prior burglary conviction and prior sales of heroin and synthetic marihuana.At the close of the proof at trial, the court ruled that defendant had failed to establishentitlement to the agency charge and did not give the related jury instruction. The jurythereafter found defendant guilty as charged, and he was sentenced to an aggregateprison term of 18 years to be followed by three years of postrelease supervision.Defendant appeals. Initially, defendant failed to renew his motion to dismiss the chargesat the close of his proof and, as such, his contention regarding the legal sufficiency of theevidence is unpreserved for our review (see People v Kolupa, 13 NY3d 786, 787 [2009]; People v Reeves, 124 AD3d1068, 1068 [2015], lv denied 25 NY3d 1076 [2015]; People v Robinson, 123 AD3d1224, 1225 [2014], lv denied 25 NY3d 992 [2015]; People v Kennedy, 75 AD3d766, 767 [2010], lv denied 15 NY3d 853 [2010]).
[*2] "Under the agency doctrine, 'a person who acts solelyas the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug tothe buyer, or of possessing it with intent to sell it to the buyer' " (People v Kramer, 118 AD3d1040, 1041 [2014], quoting People v Watson, 20 NY3d 182, 185 [2012] [citationomitted]; see People vEchevarria, 21 NY3d 1, 20 [2013]). "The issue of whether a defendant iscriminally responsible as a seller, or merely a purchaser doing a favor for a friend, isgenerally a factual question for the jury to resolve on the circumstances of the particularcase" (People v Croley, 216 AD2d 690, 690 [1995], lv denied 86 NY2d793 [1995]; see People v Lam Lek Chong, 45 NY2d 64, 74-75 [1978], certdenied 439 US 935 [1978]). "A trial court must grant a request for an agency chargewhen, viewed in the light most favorable to the defendant, some evidence, howeverslight[,] supports the inference that the [defendant] was acting, in effect, as an extensionof the buyer" (People vMonykuc, 97 AD3d 900, 902 [2012] [internal quotation marks, citations,brackets and ellipsis omitted]; see People v Magee, 263 AD2d 763, 765[1999]).
Here, defendant did not initiate the subject transactions. Rather, the CI, who wasacquainted with defendant, contacted him to initiate both buys. Before the first buy,defendant said to the CI, with regard to the supplier, "when she meets me and you she'sgoing to sell us the eight," which shows that defendant aligned himself with the CI on thebuyer's side of the transaction. At the time of the first buy, defendant and the CI met indefendant's driveway and talked about defendant's girlfriend, car and job while theywaited for the supplier to arrive with the drugs. When the supplier arrived, the CI askeddefendant to get the drugs from her so that he could see them before he paid, anddefendant complied. Defendant retrieved nine bags of heroin from the supplier,explaining to the CI that there were "nine here cause [he was] gonna get one too"; again,he was identifying himself on the buyer's side of the transaction. Defendant's girlfriendtestified that he did not benefit from the sales to the CI.
While defendant did exhibit some arguably salesman-like behavior by touting thequality of the drugs, such statements do not preclude a reasonable view of the evidence,when taken in the light most favorable to defendant (see People v Ortiz, 76 NY2d446, 448 [1990]), that he acted solely on behalf of the buyer. One may infer from suchstatements that defendant was simply making conversation, particularly in light of theevidence that defendant did not profit from the sales. Thus, we agree with defendant thatthe jury should have been instructed on the applicable law and been afforded theopportunity to decide whether defendant acted solely as the CI's agent (see People vEchevarria, 21 NY3d at 21-22; People v Monykuc, 97 AD3d at902).[FN*]
To the extent that defendant's remaining arguments have not been renderedacademic, they have been found to be without merit.
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Warren County for anew trial.
Footnote *:We also find CountyCourt's denial of defendant's request for the jury charge troubling in light of the court'sMolineux ruling that was based upon defendant's reliance on the agency defense.