13 A.D.2d 714 | N.Y. App. Div. | 1961
Judgment of conviction unanimously reversed on the law and facts and indictment dismissed. Memorandum: There was nothing in the evidence to show that the defendant had entered into a conspiracy with the vendor of the narcotics to engage in the selling of narcotics or that the defendant had acted in the transaction in any way as the agent of the vendor or on her behalf, or that he was associated in any way with the enterprise of the vendor or that he had any personal or financial interest in bringing trade to her. The motion to dismiss the indictment should therefore have been granted. One who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics. (People v. Buster, 286 App. Div. 1141; People v. Pasquarello, 282 App. Div. 405, affd. 306 N. Y. 759; United States v. Sawyer, 210 F. 2d 169; United States v. Moses, 220 F. 2d 166.) (Appeal from judgment of Onondaga County Court convicting defendant in two counts of conspiracy to sell and the illegal sale of narcotics.) Present—Bastow, J. P., Goldman, Halpern, MeClusky and Henry, JJ.