
    The People of the State of New York, Respondent, v Stephen Feldman, Appellant.
    Argued April 29, 1980;
    decided June 10, 1980
    
      POINTS OF COUNSEL
    
      E. Stewart Jones, Jr., for appellant.
    I. The trial court’s refusal to charge the jury with respect to the issue of agency constituted reversible error. (People v Melendez, 57 AD2d 522; People v Rankin, 55 AD2d 826; People v Roche, 45 NY2d 78; People v Lam Lek Chong, 45 NY2d 64; People v Buster, 286 App Div 1141; People v Branch, 13 AD2d 714; People v Lindsey, 16 AD2d 805; People v Johnston, 47 AD2d 897; People v Robert "W.”, 47 AD2d 793.) II. Independent of the reversible error committed by the trial court in refusing to give the instruction on agency, the cumulative effect of certain additional procedural errors was such that Steven Feldman was denied a fair trial. (United States v Masino, 275 F2d 129; Government of Virgin Is. v Hendricks, 476 F2d 776; People v Smith, 285 App Div 590; People v Rencher, 49 AD2d 609; People v Conklin, 39 AD2d 160.)
    
      Sol Greenberg, District Attorney (F. Patrick Jeffers of counsel), for respondent.
    I. There was no error by the trial court in its refusal to charge the defense of agency. (People v Argibay, 45 NY2d 45; People v Lam Lek Chong, 45 NY2d 64; People v Roche, 45 NY2d 78; People v Weiss, 290 NY 160; People v Walker, 198 NY 329.) II. There were no errors which deprived defendant of a fair trial. (People v Smith, 285 App Div 590; People v Thompson, 37 AD2d 636; Government of Virgin Is. v Hendricks, 476 F2d 776; People v Crimmins, 36 NY2d 230; People v Marks, 6 NY2d 67; People v Arce, 42 NY2d 179.)
   OPINION OF THE COURT

Per Curiam.

Defendant appeals from an order of the Appellate Division, two Justices dissenting, which affirmed his conviction after a jury trial of criminal sale of a controlled substance in the third degree (Penal Law, § 220,39). At trial, the court refused defendant’s request to charge the jury on the agency defense on the ground that there was no reasonable view of the evidence from which the jury might conclude that, in engaging in the illicit transaction, defendant had acted solely as agent of the buyer. There should be a reversal and a new trial.

At trial, the essential testimony was furnished by the three principals to the transaction: undercover Officer Fargione, informant Bowe and the defendant. The People’s version of events, as related by Fargione and Bowe, was that the pair ventured to defendant’s apartment seeking to purchase one gram of cocaine as arranged earlier that day in a series of phone calls between defendant and Bowe. While Fargione waited in another room, defendant handed Bowe an envelope containing a white powder subsequently determined to contain cocaine. Bowe took some of the powder for himself and added kitchen flour supplied by defendant to the remainder before giving the package to the officer in the presence of defendant. Fargione then sought to hand defendant $125 for the drug, the price previously quoted by Bowe. Defendant rejected the tender, indicating that the money should be given to Bowe. The officer then gave the money to Bowe who immediately handed it to defendant in the officer’s presence.

Defendant’s version of the affair differed from that of Fargione and Bowe. Upon being importuned repeatedly by Bowe, defendant testified that he procured one gram of cocaine for $125 to accommodate his friend. When Bowe arrived at his apartment in the company of Fargione, defendant became concerned about the latter’s presence and dealt with Bowe alone while the officer waited in another room. He observed Bowe take some of the cocaine for himself, add flour to the remainder, whereupon he accepted $125 from Bowe in the absence of Fargione. Defendant related that this was the first time he had procured cocaine for another and that he made no profit and had no interest in the transaction.

The scope and ramifications of the agency defense have been fully discussed elsewhere and merit no repetition here (People v Argibay, 45 NY2d 45; People v Sierra, 45 NY2d 56; People v Lam Lek Chong, 45 NY2d 64; People v Roche, 45 NY2d 78; People v McLeod, 45 NY2d 95). For present purposes it suffices to note only that, in a prosecution for the sale of a controlled substance, a person who acts solely to accommodate the buyer acts as the alter ego of the recipient. Since the Penal Law does not impose criminal sanctions for the mere purchase of narcotics, the agent is held to the same degree of criminal liability as his principal from whom culpability is derived. Thus, where there is some reasonable view of the evidence which lends support to the claim that the defendant acted as an instrumentality of the buyer, upon a timely request, the court should instruct the jury on the agency defense.

In this case, failure to grant defendant’s timely request to charge agency constitutes reversible error. Defendant’s testimony raised the question of whether he simply purchased and delivered a small quantity of drugs solely to accommodate a friend without any commercial interest in promoting the transaction — the quintessential agency relationship (People v Argibay, supra; People v Roche, supra). That the drugs were subsequently transferred from Bowe to Fargione does not detract from this conclusion, for under defendant’s version of the facts, the two transfers were discrete transactions (see People v Roche, supra [where quantity of drugs sold lead inevitably to conclusion that they would be resold did not preclude use of agency defense]).

Nor is it material that the indictment charged defendant with selling the drugs to Fargione, not Bowe. Quite simply, the corpus delicti of the crime charged was the transfer of a controlled substance (Penal Law, § 220.00, subd 1); the person to whom that substance was transferred was immaterial to this conviction (see People v Cunningham, 48 NY2d 938, 940-941). True, as the dissent indicates, the indictment charged a sale to Fargione rather than to Bowe — at a specific time, date and place. However, the "[unassailable notions of due process and fundamental fairness” mentioned in the dissent did not prevent defendant from claiming a defense of agency based on proof contrary to the facts charged in the indictment, particularly where the person to whom the sale was allegedly made was not a material element of the crime charged (see, also, People v La Marca, 3 NY2d 452, 458-459). In these circumstances, given the admission by defendant of the transfer to Bowe, failure to charge agency was tantamount to a ruling that the transfer constituted a sale as a matter of law without putting the People to their burden of disproving an agency relationship. If, as claimed by defendant, he engaged in the transaction in the absence of malevolent motive to accommodate Bowe, he had no interest in the subsequent sale to Fargione. The People may not be permitted to deprive a defendant of the benefit of the agency defense by the simple expedient of charging him with a criminal sale to whomever might ultimately obtain the drugs.

For these reasons, the order of the Appellate Division should be reversed and a new trial ordered.

Jones, J.

(dissenting). The order of the Appellate Division should be affirmed for the reasons stated in the opinion of Mr. Justice T. Paul Kane in that court (69 AD2d 151).

It was charged in the indictment that "defendant did sell to one Detective Thomas Fargione, Albany Police Department, a quantity of the narcotic drug cocaine”. The trial court charged the jury that the People were required to prove beyond a reasonable doubt that defendant sold a narcotic drug "to Thomas Fargione, an undercover police officer”. It was the defense theory that defendant had made no such sale, that his handling of the drugs was solely, by way of accommodation, to assist the informer Ronald Bowe to obtain the drugs and for no other purpose, and that defendant had had no transaction with Detective Fargione. The defense request for an agency defense charge was orally predicated on the contention that defendant was Bowe’s agent. The Trial Judge denied the request to charge, stating: "I am not going to charge agency. It may well be that the defendant was the agent of Ronald Bowe in this transaction. However, the indictment charges the defendant with sale of a controlled substance to Officer Fargione and under any reasonable view of the evidence, this Court cannot see how an agency relationship exists between the defendant and the buyer.” Defense counsel excepted but advanced no exposition of any theory that defendant was Fargione’s agent. Specifically it was never then faintly intimated, as has now been asserted, that defendant might have been a subagent of Fargione, the buyer named in the indictment, through the intermediate agency of Bowe; defendant denied any relationship whatsoever with Fargione, direct or indirect.

The trial court should not be faulted in the appellate courts for not having foreseen a wholly novel construct or for failing to have divined defendant’s present subagency concept. Whatever would have been the legal consequence of the denial of a request incorporating such a construct or concept, it should be dispositive for present purposes that no such theory was ever advanced in the trial court.

The majority appear to conclude that, inasmuch as there was proof from which it could be determined that defendant, acted as agent of Bowe, he was entitled to an agency defense charge, notwithstanding the absence of any proof that defendant was agent of Fargione. This would be so if a conviction could have been based on a finding that defendant had made a sale to Bowe; to such a sale proof of such an agency would have been a defense. But defendant was not charged with selling to Bowe; the charge was sale to Fargione — if the jury found that defendant sold to Bowe and not to Fargione he was entitled to an acquittal; if, as proved to be the case, the jury found that defendant had sold to Fargione, any agency relationship with Bowe as principal would be legally irrelevant.

I find genuinely disturbing the suggestion in the majority opinion that an indictment alleging the sale of a controlled substance to a specifically named individual (here Detective Fargione) might be the jurisdictional predicate for conviction of sale to another individual (here Bowe): "Nor is it material that the indictment charged defendant with selling the drugs to Fargione, not Bowe. Quite simply, the corpus delicti of the crime charged was the transfer of a controlled substance * * * the person to whom that substance was transferred was immaterial to this conviction” (p 504). Unassailable notions of due process and fundamental fairness plainly dictate that a defendant be afforded notice of the precise charge against him. He cannot be convicted under an indictment charging sale to A by proof that he sold to B. Under no view could this be considered an immaterial variance from the indictment (cf. People v Cunningham, 48 NY2d 938, 940). Nor do I comprehend the suggestion that by charging defendant with having sold to Fargione the prosecution has somehow deprived defendant of his right to assert an agency defense to a sale to Bowe.

Chief Judge Cooke and Judges Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion; Judge Jones dissents and votes to affirm in a separate opinion in which Judges Jasen and Gabrielli concur.

Order reversed, etc.  