Agency defense in NYS Criminal Courts

The agency defense is used by a New York criminal lawyer when a defendant is charged with a single sale of a controlled substance. The agency defense stands for the idea that the defendant is not guilty of "selling drugs" because he or she was allegedly acting solely as the agent of the buyer - as a mere extension of the buyer. The defendant is essentially buying the drugs on the undercover Police Officers behalf, and acting as an agent for the buyer.

If there is a reasonable view of the evidence that the defendant was the buyers agent then the trial Judge upon a timely request from the defense counsel must instruct the jury as to the agency defense. The trial Judge will view the evidence in the light most favorable to the defendant. As long as there is some evidence, the agency instruction must be given. The agency defense is not an affirmative defense that the defense has to prove, but rather it negates the necessary intent to be found guilty of the sale. Thus, the burden is on the People to prove beyond a reasonable doubt that the defendant was not the agent of the buyer. The legislative policy behind the agency defense is that the person who purchases, or possesses drugs for themselves or for someone else should be punished less severely then those who sell them.

The fact finder needs to determine if the defendant acted:

• on behalf of the seller,

• the seller and the buyer, or

• on the defendants own behalf.

If the fact finder finds any of the above three scenarios to be true then the defendant can not successfully use the agency defense. The fact finder needs to look at the defendants state of mind when the sale took place. The agent must have no direct interest in the drugs being sold. Once the agency defense is raised, and intent becomes an issue the People can then cross-examine the defendant with his or her involvement in prior uncharged drug transactions. If the defendant acting alone, or in concert with another, had the specific criminal intent to sell the drugs then the agency defense would fail. On the other hand, if the defendant was found to be solely the agent for the buyer and obtained the drugs as his or her agency then the agency defense would negate the criminal culpability for the crime. The defendant can have an interest in obtaining drugs for his or her personal use, and for the buyer. A defendant who plays the role of a steerer can not raise the agency defense. A streerer is one who flags down potential customers for drugs and directs them to the proper location. An agency defense can be raised in possession with intent to sell cases.

Intent is a state of mind, and can be shown by the defendants conduct and other facts and circumstances. The jury will look at the parties conduct during the transaction.

Factors to consider:

• Did the defendant derive any personal (financial) profit from the transaction? Did the defendant intend to profit?

• Was the defendant promised in advance a substantial benefit or award?

• Did the defendant only receive money from the buyer as mere appreciation, or was it part of the bargain?

• Was the defendant acting solely on the buyers behalf without any independent desire to close the deal?

• Who initially suggested the sale? Was it the undercover?

• Was the defendant and the undercover friendly before this transaction?

• Where did the money for the drugs come from? Was it from the buyer, or the did the defendant advance money for the purchase?

• Did the defendant reach out to many sources to obtain the drugs?

• Did the defendant behave like a salesperson?

• Did the defendant have the drugs, or did the defendant obtain them from a third party?

• Did the defendant have prior dealings with this buyer?

• Did the defendant have prior dealings with this seller?

• Was the defendant and the sellers acting as one in this sale?

The jury in the case will be able to use the above factors, plus their own common sense and experience to determine whether the defendant can successfully use the agency defense. If convicted, however, the defendant would likely spend months in a Rikers Island jail or even years in an upstate prison.