People v. Vasquez

—Judgment, Supreme Court, New York County (Dora Irizarry, J.), rendered March 2, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously reversed, on the law, and the matter remanded for a new trial.

Defendant’s request for an agency charge should have been granted, because a reasonable view of the evidence could support the inference that he was acting as an agent of the undercover officer (see, People v Argibay, 45 NY2d 45, 53-55, cert denied sub nom. Hahn-DiGuiseppe v New York, 439 US 930; People v Lam Lek Chong, 45 NY2d 64, 73, cert denied 439 *240US 935; People v Roche, 45 NY2d 78, 86, cert denied 439 US 958; People v Butts, 72 NY2d 746, 750). The People argue that the judgment should be affirmed because: the undercover officer and defendant were complete strangers; defendant revealed a relationship with the drug culture by recognizing “D” as a street name for heroin and offering to get the undercover the two glassine envelopes he had requested; and defendant also revealed a fear of apprehension by asking the undercover whether he was a cop. Were this all there was, the denial of an agency charge would have been proper (see, People v Vasquez, 253 AD2d 728; People v Herring, 83 NY2d 780, 783).

In this case, however, there is more. Defendant approached the undercover officer asking for a cigarette, and the officer gave him one. The officer then asked him to get drugs, giving the defendant $20. As defendant was about to leave to get the drugs, the officer asked him for security, and defendant gave him a pouch containing identification. Defendant did not hawk drugs or solicit customers. He did not tout the quality of the drugs or engage in any salesman-like behavior. The transaction proceeded at a leisurely pace. In addition, neither pre-recorded money nor drugs were found on defendant when he was almost immediately arrested. Under these circumstances, a jury could reasonably conclude defendant intended only to reciprocate the undercover officer’s favor by obtaining the drugs he requested, and was acting as his agent. Concur — Rosenberger, J. P., Mazzarelli, Ellerin, Wallach and Buckley, JJ.