27 A.D.2d 754 | N.Y. App. Div. | 1967
Judgment of the County Court, Suffolk County, rendered May 31, 1966 on resentence, reversed, on the law and the facts, and indictment dismissed. Defendant’s conviction for violation of the Public Health Law with respect to narcotic drugs (Penal Law, § 1751, subd. 1) rests on a single sale of marijuana to a special employee of the police department. The People’s proof affirmatively established that defendant acted solely as an agent of this employee; and failed to show that he received any financial profit from the transaction or that he was acting in concert with the actual vendor. Under these circumstances, the learned trial court should have applied the rule that “ one who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics” and should have granted defendant’s motion to dismiss the indictment (People v. Lindsey, 16 A D 2d 805, affd. 12 N Y 2d 958; People v. Buster, 286 App. Div. 1141; People v. Branch, 13 A D 2d 714; People v. Silverman, 23 A D 2d 947; United States v. Moses, 220 F. 2d 166; United States v. Sawyer, 210 F. 2d 169). Christ, Acting P. J., Hopkins and Munder, JJ., concur; Brennan and Benjamin, JJ., dissent and vote to affirm the judgment, with the following memorandum: We disagree with the majority’s conclusion that the People’s proof affirmatively established that defendant acted solely as an agent of the buyer. As we view the record, there was no affirmative proof at all as to