People State New York v. Frank Gonzales

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 16, 1977, convicting him of criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the first degree and seventh degree (two counts) and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law and the facts, by reversing the convictions of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree, and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed. The issues presented in this case are whether the defendant acted as an agent of the buyer throughout his dealings with the undercover officers and whether the defendant can be convicted for the sale of a controlled substance when the substance involved in the transaction was lidocaine. We hold that the defendant was not proved guilty of criminal possession of a controlled substance in the first degree and criminal sale of a controlled substance in the first degree beyond a reasonable doubt, and that the sale conviction involving lidocaine cannot stand. The factors which a jury must consider in resolving the agency question are numerous. Recent decisions of the Court of Appeals have established the following elements which must be considered in determining whether a defendant is an agent of the buyer (cf. People v Roche, 45 N.Y.2d 78; People v Lam Lek Chong, 45 N.Y.2d 64; People v Argibay, 45 N.Y.2d 45): (1) did the defendant act as a mere extension of the buyer throughout the relationship, with no independent desire to promote the transaction; (2) was the purchase suggested by the buyer; (3) did the defendant have any previous acquaintance with the seller; (4) did the defendant exhibit any salesmanlike behavior; (5) did the defendant use his own funds; (6) did the defendant procure from many sources for a single buyer; (7) did the buyer pay the seller directly; (8) did the defendant stand to profit; and (9) was any reward promised in advance. In applying these elements to the evidence presented in this case, the entire course of the dealings between the defendant and the officers is relevant. Here, the relationship was initiated by the officers, posing as organized crime figures, in a bar in the defendants neighborhood. They brought up the subject of buying drugs. They repeatedly pressed the defendant to obtain cocaine, notwithstanding his numerous failures to call them as promised. No proof was presented to show that the defendant had [66 A.D.2d 828 Page 829]