Criminal Law: New York: Narcotic Offenses: Defenses: Agency (Are you really a drug dealer?)
New York allows the defense termed “Agency” in narcotic cases.
Agency is the idea that the accused is not the seller, but rather an agent of the buyer, and therefore does not posses the requisite intent to sell narcotics or the requisite intent to posses and sell narcotics. As an agent of the buyer has no greater intent than the buyer, then the agent can have no greater criminal liability than a buyer of narcotics and clearly not that of a seller.
While the Agency theory is a defense to sale of narcotics, it is no defense to possession. Additionally, the defense of Agency is not available in federal court. When the defense of Agency has been successfully asserted (assertion is successful when a reasonable view is put forth that the accused was merely an instrument of the transaction), the court will instruct the jury to consider:
- The nature of the relationship between the accused and the buyer or the accused and the seller;
- Whether the accused or the buyer suggested the purchase;
- Whether the accused merely acted as an extension of the buyer without an independent intention to create the transaction;
- Whether the accused profited from the transaction;
- Whether the accused acted as a salesman;
- Whether the accused acted as a broker;
- Whether the accused used his own funds in purchasing the narcotics; and
- Whether the accused has a history of narcotic sales with other buyers or sellers.
Agency is not an affirmative defense, rather the prosecutor must prove beyond a reasonable doubt that Agency doesn’t exist when there is evidence of such. As the defense is asserted by the accused, the defense opens the door for the prosecution to present evidence in all phases of the trial of the accused’s prior narcotic transactions, including questioning of the accused themselves (meaning the prosecution can force the accused to take the stand).
The fact that a portion of the drugs were intended for the accused is not a preclusion to the defense of Agency, however the accused MUST request the charge and take exception if there is a failure to present the charge to the jury otherwise the issue will be non-appealable.
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