87 Misc. 2d 739 | N.Y. Sup. Ct. | 1976
Codefendants John O’Keefe and James Gulliver, acting in concert, stand charged with the crimes of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree
The defendants have raised the defense of agency, asserting that they went into New York to buy heroin at the behest of a friend, one Jerry Herman, who lived at 1085 Warburton Avenue and who was "sick” and in need of drugs. They stated that upon purchasing the drugs, they returned to 1085 Warburton Avenue and gave the drugs to Landers, who had driven Herman, O’Keefe and one Robert Coverdale into Harlem earlier that day on an unsuccessful drug run, and who had provided the defendants with the $70 used to make the purchase in question. The testimony showed that Herman, although ill, set up the meeting between O’Keefe and Landers in the lobby of 1085 Warburton Avenue wherein Landers provided the money for the buy.
The question presented is, whether the People should be permitted, in order to disprove the defense of agency, to introduce evidence of the defendants’ prior drug offenses, as bearing on the issue of the intent with which the defendants
However, despite the introduction of various prior drug offenses relating to both of the codefendants, the court cannot
Dismissed as a noninclusory concurrent offense of sale in the third degree prior to summations.