
    The People of the State of New York, Respondent, v Anthony Argibay, Appellant. The People of the State of New York, Respondent, v Anthony Di Guiseppe, Appellant.
    Argued March 29, 1978;
    decided June 15, 1978
    
      POINTS OF COUNSEL
    
      Irving Cohen for Anthony Argibay, appellant.
    I. The court should have granted a mistrial or, at minimum, discharged the juror upon learning that a juror told defense counsel "I hate you”. (People v Jelke, 308 NY 56; People v Cocco, 305 NY 282; United States v Flynn, 216 F2d 354; Mark v Colgate Univ., 53 AD2d 884; People v Durling, 303 NY 382; People v Winslow, 51 AD2d 824; People v Phillips, 87 Misc 2d 613, 52 AD2d 758.) II. As applied to this case, the mandatory sentence which was imposed six years to life was unconstitutional. (People v Broadie, 37 NY2d 100; Trop v Dulles, 356 US 86; People v Jones, 39 NY2d 694.) III. The effect of prosecutorial error and misconduct was so great so as to deny appellant a fair trial. (People v Ashwal, 39 NY2d 105; People v Griffin, 29 NY2d 91; People v Savvides, 1 NY2d 554; People v Garcia, 40 AD2d 983; People v Matthews, 33 AD2d 679.) IV. The court’s charge was erroneous and prejudicial in that it it failed to charge agency and facilitation as to Argibay and in charging facilitation as to Di Guiseppe, codefendant, it indicated that they must first find Argibay guilty of the sale. (People v Ivory, 27 AD2d 844; People v Volante, 75 Misc 2d 400; People v Lindsey, 16 AD2d 805, 12 NY2d 958; People v Fortes, 24 AD2d 428; People v Silverman, 23 AD2d 947; People v Jamison, 29 AD2d 973; People v Valentine, 55 AD2d 585; People v Paturso, 34 AD2d 832; People v Sanders, 45 AD2d 768; People v Chase, 13 Misc 2d 300.) V. The granting of the motion for consolidation, especially when considered with the court’s incorrect charges on facilitation and agency, was an abuse of discretion, and not authorized by any section of the procedural law. (People v Welch, 16 AD2d 554; People v Hannon, 50 Misc 2d 297; People v Pilon, 30 AD2d 365; People v Krugman, 44 Misc 2d 48; Gideon v Wainwright, 372 US 335.) VI. It was error to deny a motion to suppress the in-court identification of appellant. (United States v Wade, 388 US 218; Gilbert v California, 388 US 263; Simmons v United States, 390 US 377; People v Ballott, 20 NY2d 600; People v Caserta, 19 NY2d 18; People v Branch, 34 AD2d 541; People v Baker, 23 NY2d 307; People v Utley, 77 Misc 2d 86; People v Ghee, 42 AD2d 860.)
    
      Eugene G. Lamb for Anthony Di Guiseppe, appellant.
    I. The statutes imposing mandatory sentences are unconstitutional and as to appellant Hahn-Di Guiseppe are unconstitutional in application. (Furman v Georgia, 408 US 238; People v Davis, 33 NY2d 221; Trop v Dulles, 356 US 86; Weems v United States, 217 US 349; People v Oliver, 1 NY2d 152; Robinson v California, 370 US 660; People v Jones, 39 NY2d 694.) II. The misconduct of a juror was prejudicial; the trial court erred in failing to act promptly to protect the rights of appellant; defendant did not waive his rights thereto. (People v Jelke, 284 App Div 211, 308 NY 56; People v Whitmore, 45 Misc 2d 506, 27 AD2d 939; People v Durling, 303 NY 382; People v Colascione, 22 NY2d 65; People v Phillips, 85 Misc 2d 613, 52 AD2d 758.) III. The indictment should have been dismissed against appellant, Di Guiseppe, at the end of the People’s case: it was error to submit the case to the jury and the trial court erred in its charge on the issue of agency. (People v Lindsey, 
      16 AD2d 805, 12 NY2d 958; People v Silverman, 23 AD2d 947; People v Fortes, 24 AD2d 428, 17 NY2d 583; People v Ivory, 27 AD2d 844; People v Miller, 24 AD2d 1023; People v Branch, 13 AD2d 714.) IV. The court’s charge as to agency was error and prejudicial to appellant, Anthony Hahn-Di Guiseppe. (People v Valentine, 55 AD2d 585; People v Bostick, 51 AD2d 749.) V. It was an abuse of discretion for the trial court to grant People’s motion for consolidation and deprived defendant, Anthony Hahn-Di Guiseppe, of a fair trial. (Carlos v Motor Vehicle Acc. Ind. Corp., 22 AD2d 866; James v Powell, 32 AD2d 517; Parker v Rogerson, 33 AD2d 284; George W. Collins, Inc. v Olsker-McLain Inds., 22 AD2d 485; People v Krugman, 44 Misc 2d 48; People v Pilon, 30 AD2d 365; People v Sher, 69 Misc 2d 847; People v Burrelle, 21 NY2d 265; People v Cavanaugh, 48 AD2d 949.) VI. Considering the totality of all the circumstances appellant, Anthony Hahn-Di Guiseppe, was deprived of his constitutionally protected right to a fair trial. (People v Jelke, 284 App Div 211, 308 NY 56; People v Whitmore, 45 Misc 2d 506, 27 AD2d 939; People v Colascione, 22 NY2d 65; People v Cocco, 305 NY 282.) VII. There was misconduct of the prosecutor throughout the trial.
    
      Robert M. Morgenthau, District Attorney (Henry Steinglass, Robert M. Pitler and David I. Pincus of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. The question of whether Di Guiseppe was acting solely as the agent of the buyer was properly submitted to the jury. (People v Hingerton, 27 AD2d 754, 26 NY2d 790.) III. The trial court properly rejected Argibay’s request to discharge a juror. (Mark v Colgate Univ., 53 AD2d 884; People v Cocco, 305 NY 282; People v Sher, 24 NY2d 454, 396 US 837; Matter of Oliver v Justices of N. Y. Supreme Ct. of N. Y. County, 36 NY2d 53.) IV. The trial court properly refused to charge agency and criminal facilitation as to Argibay. (People v Jamison, 29 AD2d 973; United States v MacDonald, 455 F2d 1259, 406 US 962; People v Williams, 49 AD2d 513.) V. Argibay’s motion to suppress potential identification testimony was correctly denied. (People v Logan, 25 NY2d 184; People v Morales, 37 NY2d 262; People v Joyiens, 39 NY2d 197; People v Glen, 30 NY2d 252.) VI. The Trial Judge properly exercised his discretion in granting the People’s motion to consolidate the two indictments. (People v Bornholdt, 33 NY2d 75; Victory v New York, 416 US 905; Poland v B. N. Cab Corp., 51 AD2d 692.) VII. The trial court properly instructed the jury on the crime of criminal facilitation. (People v Wofford, 52 AD2d 779; People v Kief, 126 NY 661; People ex rel. Guido v Calkins, 9 NY2d 77; People v Munroe, 190 NY 435.) VIII. The prosecutor’s trial conduct was proper. (People v Castillo, 16 AD2d 235, 12 NY2d 732.) IX. The sentences imposed were constitutional. (People v Broadie, 37 NY2d 100.)
   OPINION OF THE COURT

Per Curiam.

Defendants Anthony Argibay and Anthony Di Guiseppe appeal from affirmances by the Appellate Division, one Justice dissenting, of their convictions after jury trial of criminal sale of a controlled substance in the second degree (Penal Law, § 220.41).

The principal issue on Argibay’s appeal is whether, in a case involving sale of narcotics, the jury must be charged on agency when the evidence demonstrates that defendant’s involvement in the transaction was, at least, that of a middleman or broker. As to Di Guiseppe, who received an agency charge, the issue tendered is whether the charge was correct in precluding the agency defense where defendant received any financial gain in the transaction; that issue is obviated by a failure to object to the charge at trial. Another issue, common to both appeals, is whether the trial court erred in failing to declare a mistrial after learning that a juror had, during the trial, said to counsel for Argibay "I hate you”. The court had offered to conduct a voir dire examination of the juror, an offer declined by defense counsel.

The orders of the Appellate Division should be affirmed. No charge on agency is required, or appropriate, when the testimony essential to the verdict in favor of the People leads to the inevitable conclusion that defendant was not merely accommodating the buyer, but was acting, if not as a principal seller, then at the very least as a middleman or a broker for his supplier. Hence, the court properly declined an agency charge as to Argibay. As to Di Guiseppe, the agency charge was erroneous, but the error was not preserved by objection at trial. While failure to take action on defense counsel’s report of juror misconduct would have been error, defendants were not entitled, automatically, to a mistrial. The trial court acted appropriately in offering to conduct a voir dire examination, and defense counsel’s refusal of the offer worked a waiver of any error.

Several other issues, raised and briefed by the defendants, have been considered and rejected.

The drug transaction in this case was initiated, according to police testimony, by a telephone call from Joseph Di Guiseppe, brother of appellant Anthony Di Guiseppe, to undercover Officer Sievers, on June 6, 1975. Preparations were made for a purchase of one ounce of cocaine that day. Sievers and undercover Officer Siebert were introduced to Anthony Di Guiseppe, and the officers were taken to the home of the "connection”. The transaction was aborted, however, with the officers waiting in their automobile in front of the connection’s home until 1:00 a.m., never having met the connection or entered his apartment. Joseph Di Guiseppe had driven away from the scene, and Anthony Di Guiseppe had not emerged from the connection’s building by the time the agents decided to leave.

After two telephone calls exploring the "foul up” of June 6, Joseph Di Guiseppe agreed to call Sievers when a new transaction had been arranged. On June 13, a week after the aborted "buy”, Joseph Di Guiseppe called Officer Siebert and made new arrangements. Siebert and Sievers again met the Di Guiseppe brothers, and were taken to the same location. After ascertaining that Sievers had money for the cocaine, defendant Anthony Di Guiseppe accompanied him to defendant Argibay’s apartment, where the transaction was to take place. Argibay’s supplier was to deliver cocaine soon and Sievers and defendant Di Guiseppe were instructed to wait in the kitchen when he arrived, so they would not see him. The delivery was made, the cocaine was tested and weighed, and after a slight dispute over the weight, Sievers paid Argibay $1,700 and received just less than an ounce of cocaine. Sievers gave Di Guiseppe a grain "off the top”, and then saw money change hands from Argibay to Di Guiseppe. When Sievers asked how he could reach Argibay to purchase more cocaine, he was instructed to deal through Anthony Di Guiseppe.

A week and a half later, Sievers called Anthony Di Guiseppe about an additional purchase, but was told that Argibay was not then interested in selling any drugs. Di Guiseppe offered to get back to Sievers about obtaining cocaine from another source. Time passed without any return call from Di Guiseppe, and Sievers went to Argibay directly to try to make a purchase. Argibay indicated that he was not making enough money to warrant his continued involvement in the narcotics trade, and declined to sell any more cocaine.

Argibay and the Di Guiseppe brothers were arrested and arraigned in September 1975. Joseph Di Guiseppe pleaded guilty and was accorded youthful offender treatment. Argibay and Anthony Di Guiseppe went to trial, at which the police testimony detailed the narcotics transaction. Argibay, an architecture student at Pratt Institute, called two. character witnesses. Di Guiseppe called no witnesses. Neither defendant testified.

On the last day of trial before summations and the charge to the jury, Argibay’s trial counsel informed the court that, as the jurors had filed out of the jury room at the end of the day, one of the jurors had stopped in front of him and said "I hate you.” Counsel for Di Guiseppe reported that he, too, had heard the rexriark. A motion was made for a mistrial or, in the alternative, for replacement of the juror by an alternate. When the motion was denied, an application was made for the court to examine the juror the next morning as to any bias that "would prevent her from rendering a fair verdict”. Although the application had been initially denied, the court had reconsidered by the next morning, and offered to question the juror. Counsel for Argibay, however, had changed his mind, and requested the court not to conduct an examination of the juror, even after the court had indicated the juror would not be disqualified unless she was first questioned. Hence, no further inquiry was conducted.

The jury was charged that if they found defendant Di Guiseppe to be solely an agent of the buyer, they should find him not guilty of the sale of the drugs. In explaining the agency charge, however, the court said "If he received or is promised any advantage, benefit or compensation for his part, he is not an agent.” No objection was taken to this charge. As to defendant Argibay, despite a request, no agency charge was given. Each defendant was convicted and sentenced to a term of from six years to life imprisonment. The Appellate Division affirmed, one Justice dissenting.

Extended discussion of the juror misconduct issue is not warranted. Had the trial court refused to investigate the juror’s remark to defense counsel, reversal might be mandated. But investigation was offered and it was defense counsel, after requesting a voir dire examination only the night before, who declined the next morning to have the examination conducted. The trial court could not be faulted for refusing to disqualify the disputed juror without conducting any inquiry into the meaning of and the circumstances surrounding the objectionable statement. Hence, when inquiry was declined, defendants waived any rights they might otherwise have had on appeal.

The agency charge submitted to the jury as to Di Guiseppe was arguably error. Since no objection was taken to the charge, however, the error is not preserved.

Preserved for review, and meriting more complete treatment, is the contention that defendant Argibay was entitled to a charge on agency. To sustain such an argument, there must be some view of the evidence on which Argibay may be said to have acted only as an agent for the buyer.

It is argued, with superficial plausibility, that since Argibay was not the ultimate supplier, he might have been acting as an agent of the buyers, the undercover officers. Indeed, Argibay’s supplier arrived with a delivery while Sievers was in Argibay’s apartment. The mere fact that Argibay was a middleman or a broker, however, is not enough to warrant a charge on agency. Were there such a rule, even the largest of drug sellers would be entitled to an agency charge, since so many narcotics originate, ultimately, abroad.

All agents aré, concededly, middlemen of sorts. But the converse is not true. A middleman who. acts as a broker between a seller and buyer, aiming to satisfy both, but largely for his own benefit, cannot properly be termed an agent of either. Such a middleman is a trader in narcotics, a merchant. He may not be concerned with the particular needs of an individual drug purchaser except to the extent that satisfying those needs affects his illicit business. To call him an agent strains beyond recognition the agency concept.

In the commercial law field, of course, an agent owes a high duty of loyalty to his principal (see Restatement, Agency 2d, §§ 387-398). While it would be ludicrous to apply commercial law definitions to the criminal law, the familiar principles are not without limited relevance. The typical intermediary in a narcotics transaction, perhaps especially because of the implications of the transaction’s illegality, is not likely to have any strong bond of loyalty to his buyer.

To be an agent of his buyer, a narcotics merchant must be a mere extension of the buyer. He may act to procure what the buyer wants because the buyer has asked him to do so, but not out of any independent desire or inclination to promote the transaction. The applicable standards are developed in greater detail elsewhere (People v Lam Lek Chong, 45 NY2d 64, 72-76; this case offers, nevertheless, a useful illustration.

None of the testimony at trial supports the inference that defendant Argibay was merely an agent of the police officers. Until the narcotics were actually delivered and paid for, the officers had never met their purported "agent”. Argibay, in fact, had used the Di Guiseppes as intermediaries to shield him from all contact with his "principal” until the transaction was to be completed. When "agent” and "principal” did finally meet, the "agent” would not allow the police officer, his "principal”, to see the supplier, and a dispute over quantity arose between Argibay and the officer. Finally, on a later occasion, Argibay admitted to Sievers that he was leaving the narcotics trade because it had ceased to be financially profitable.

This testimony, uncontroverted as it is by proof or cross-examination, is not reconcilable with the theory that Argibay was acting only as an extension of his buyer. The argument that the undercover officer might have lied about Argibay’s involvement, and that Argibay _ may have done nothing more than offer his apartment to facilitate the deal between undercover Officer Sievers and the ultimate supplier, is not supported by any evidence. It is not even credible speculation or hypothesis. If the testimony of Officer Sievers is to be believed at all, and the finder of fact, the jury, evidently believed it, Argibay was a seller of narcotics, and by no inferential process an agent. Hence, no charge to the jury on agency was necessary or appropriate. For identical reasons, no charge on facilitation was required.

Anthony Di Guiseppe presents a useful counterpoint. Di Guiseppe became involved in the transaction when his brother received a telephone call from an undercover officer. The undercover officers were in frequent contact with Di Guiseppe, who eventually brought them to Argibay’s apartment. Yet the undercover officer paid Argibay for the drugs directly, rather than dealing through Di Guiseppe, although Di Guiseppe’s involvement did include compensation by, at least, a small quantity of cocaine. Finally, Di Guiseppe was apparently willing to act as a procurer of drugs from sources other than Argibay, indicating, perhaps, more loyalty to the prospective buyer, his supposed "principal”, than to any single supplier. While even this testimony does not establish that Di Guiseppe was an agent, it does not appear to be inconsistent with agency, and a jury charge on agency was probably indicated. Only the failure to object to the erroneous charge prevents review in this court.

In sum, an agency charge is not required simply because it appears that a seller of narcotics did not personally grow, import, or manufacture the illicit substance. If it were, an agency charge would be mandated as a matter of course when sale of narcotics is alleged. Instead, the agency charge should be reserved for cases where there is at least some evidence, however slight, to support the inference that the supposed agent was acting, in effect, as an extension of the buyer.

Accordingly, the orders of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jones, Wachtler, Fuchs-berg and Cooke concur in Per Curiam opinion; Judges Jasen and Gabrielli concur in the opinion except insofar as it justifies the concept of the agency defense (see dissenting opn by Gabrielli, J., in People v Roche, 45 NY2d 78, decided herewith).

Orders affirmed.  