People v. Ortiz — 163 A.D.2d 61

Majority

p. 61

The People of the State of New York, Respondent, v Wilfredo Ortiz, Appellant.

Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered August 22, 1988, which convicted defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentenced him to 4 Vz to 9 years’ imprisonment, unanimously reversed, on the law, and the matter remanded for a new trial.

The trial court erred when it refused to charge the defense of agency in this case, where a reasonable view of the evidence could have led the jury to conclude that defendant acted as a mere instrumentality of the buyer, thus supporting a theory of agency, which was the sole defense in this case. (People v Roche, 45 NY2d 78 , 86, cert denied 439 US 958 [1978].) Specifically, defendant was entitled to the requested jury instruction based upon his testimony that he did not know the seller, and that he was acting solely on behalf of the buyer, a ''pretty woman”, who ultimately proved to be an undercover police officer. (People v Roche, 45 NY2d 78 , 83, supra; People v Argibay, 45 NY2d 45 , 55, cert denied sub nom. Hahn-DiGuiseppe v New York, 439 US 930 [1978]; People v

p. 62

Miano, 143 AD2d 777 [2d Dept 1988]; People v Garay, 128 AD2d 413 [1st Dept 1987]; see generally, People v Lam Lek Chong, 45 NY2d 64 , 75, cert denied 439 US 935 [1978] [enumerating the factors to be considered in determining whether an agency relationship existed].)

Accordingly, we reverse and remand for a new trial. Concur —Ross, J. P., Carro, Wallach and Rubin, JJ.

Cases cited

People v. Roche 45 NY2d 78 N.Y. 1978-06-15 at 86, at 83 p. 61
American Air Filter Co. v. Federal Trade Commission 439 US 958 SCOTUS 1978-11-06 p. 61
People v. Argibay 45 NY2d 45 N.Y. 1978-06-15 at 55 p. 61
People v. Miano 143 AD2d 777 N.Y. App. Div. 1988-10-11 p. 62
People v. Garay 128 AD2d 413 N.Y. App. Div. 1987-03-10 p. 62
People v. Lam Lek Chong 45 NY2d 64 N.Y. 1978-06-15 at 75 p. 62