17.22 - V. Judicially Created Defense Of Agency

• Jurisdiction: New York

V. JUDICIALLY CREATED DEFENSE
OF AGENCY

The agency defense holds that a person who acts solely at the request of and as an agent for a purchaser of drugs may not be convicted of the charge of illicit sale of drugs.²⁷⁶⁷ It is for drug cases.²⁷⁶⁸

Agency “is not an affirmative defense . . . [r]ather, it may negate the existence of an essential element of the crime—the ‘sale’”²⁷⁶⁹ and therefore is an ordinary defense. It is very often raised together with the affirmative defense of entrapment since the use of an undercover investigator creates circumstances that make both defenses more plausible. As an ordinary defense, the prosecution has the burden of disproving agency beyond a reasonable doubt.²⁷⁷⁰

A person who “acts as procuring agent for the buyer alone is a principal or conspirator in the purchase rather than [in] the sale of the contraband.”²⁷⁷¹ Factually, the agent is not really involved in the “sale” part of the transaction but is more interested in aiding the buyer. Under the current scheme of the state’s drug laws, the harshest penalties are meted out to sellers, and the legislature treats buyers differently and less harshly.²⁷⁷² Therefore, the courts must make a proper distinction to define who is covered under the laws as a “seller” and who is not:

Since the thrust of our statutes, as consistently construed, is not directed against purchasers, an individual who participates in such a transaction solely to assist a buyer and only on his behalf, incurs no greater criminal liability than does the purchaser he aids and from whom his entire standing in the transaction is derived. Specifically, without more he may not be treated as an accomplice of the seller. ²⁷⁷³

For the most part, only those who participate in a drug purchase out of a desire to help the purchaser qualify as agents. Cases turn on their particular facts.

The status of the parties must be determined by focusing on their respective conduct and deciding who seems to be acting in accordance with the behavior typically associated with an agent. Thus, “[s]alesman-like behavior, commonly connoting an interest that goes beyond representation of the buyer alone, may include touting the quality of the product . . . bargaining over price . . . and apologizing for the quality of drugs or the manner of their delivery.”²⁷⁷⁴ Such behavior would lessen the probability that the defendant is an agent for the buyer. The court may also consider the defendant’s prior acquaintance with the drug supplier or with the world of narcotics in general, though these factors are of lesser importance.

That the defendant profited from a drug transaction is not necessarily a determinative factor. The fact that an agent “does not act gratuitously would not necessarily be inconsistent with the defense of agency.”²⁷⁷⁵ However, even if he were doing a favor for a friend, when the evidence shows that the defendant’s “actions were undertaken with the paramount idea that he would profit thereby,” he is not an agent “as a matter of law.”²⁷⁷⁶ On the other hand, when a defendant, charged with selling drugs to an undercover officer, purchased a portion of the drugs for his own use and the balance as an agent for the officer, he may, notwithstanding his personal interest in a portion of the drugs as a purchaser, be entitled to an agency defense as to the balance. This does not mean that an expanded charge in this type of situation must be given.²⁷⁷⁷ Instead, a trial court’s instruction that the jury may consider any benefit received from the buyer is adequate to apprise it of an agency defense.²⁷⁷⁸

A broker who brings seller and purchaser together for a fee does not qualify as an agent of the buyer. The mere fact that he is not the ultimate seller or supplier is of no moment. The “middleman—be he a jobber or any other category of merchant trading in narcotics, or a broker furthering his own interests by serving both...