People v. Spradley ( 1998 )

Copertino, J.,

concurs in part and dissents in part and votes to affirm the judgment appealed from, as amended, with the following memorandum: The prosecution elicited testimony indicating that the defendant approached an undercover officer in an unmarked police van and persistently offered to “hook [him] up”. The second time she approached the officer, she asked if he wanted to “buy * * * something”. The officer motioned the defendant to enter the vehicle and told her that he wanted “two oh”, meaning $20 worth of crack cocaine. The defendant directed the officer to a location where she took $20 from the officer, got out of the van, and returned with a vial of crack cocaine.

In stark contrast, the defendant testified that her friend (and sometimes pimp) introduced her to the undercover officer and told her that the officer wanted to get something to smoke and to “hang out”. (On cross-examination, the defendant testified that her friend told her that the officer wanted to “do something” and that he would give her something for it, which the defendant understood to mean that the officer wanted her to have sex with him.) According to the defendant, when the officer asked her if she could get a “twenty”, she asked whether she would “get something out of it”. The officer said yes, and the defendant got in the van to take him to someone from whom she had bought drugs in the past. She testified that after she bought the drugs she chipped off a portion of the crack cocaine for her own use. The defendant was arrested shortly after returning to the vehicle and delivering the drugs to the officer.

On appeal, the defendant contends, inter alia, that the trial court’s instructions to the jury on the agency defense were inadequate. Specifically, the defendant contends that the trial court should have instructed the jury that it could consider any benefit received from the buyer as supportive of an agency defense (see, 3 CJI[NY] PL art 220, at 1752). Viewing the instructions on the agency defense as a whole, I find no error. The trial court instructed the jury that it might wish to consider such factors as whether the defendant initiated the transaction, the nature and extent of the relationship between the defendant and the buyer, and whether the defendant received any benefit from the transaction. The court also instructed the jury that it could consider factors argued by counsel in their respective summations, and that it should rely on its common sense and experiences in determining whether the defendant was acting as agent for the undercover officer.

The trial court’s instructions to the jury provided a balanced and accurate presentation of the agency defense (see, People v Job, 87 NY2d 956; People v Lam Lek Chong, 45 NY2d 64, 75, cert denied 439 US 935; People v Dunn, 122 AD2d 952). It is not necessary in all cases to provide an expanded charge explaining the significance of every possible factor (see, e.g., People v Speed, 226 AD2d 1090; People v Schiano, 198 AD2d 820; People v Donegan, 112 AD2d 747). This case does not present a situation where the charge impliedly foreclosed the agency defense by suggesting that the jury should convict the defendant if it found that she received any benefit at all as part of the transaction (cf., People v Mauras, 100 AD2d 557; People v Jenkins, 77 AD2d 912, 913). Moreover, I find no evidence in the record to support an inference that the defendant was acting in a dual capacity by purchasing part of the narcotics for her own use (cf., People v Andujas, 79 NY2d 113).

For the foregoing reasons, I would affirm the judgment of conviction in its entirety.