Opinion
06 Civ. 1508 (SAS).
August 10, 2007
For Petitioner: Robert Budner, Esq., The Legal Aid Society, Criminal Appeals Bureau, New York, New York.
For Respondents: Frederick H. Wen, Assistant Attorney General, New York, New York.
OPINION AND ORDER
Tyrone Harris ("petitioner") brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, claiming that he is being held in state custody in violation of his due process right to a fair trial. Petitioner's custody arises from a judgment of conviction entered on December 12, 2001, following a jury trial in New York State Supreme Court, New York County, convicting him of Criminal Possession of a Controlled Substance in the Third Degree (possession with intent to sell). Petitioner was sentenced, as a second felony offender, to an indeterminate term of four and one-half to nine years imprisonment. Petitioner's conviction was unanimously affirmed by the Appellate Division, Fourth Department, and leave to appeal to the New York State Court of Appeals was denied. Petitioner is currently on parole pursuant to this judgment.
See People v. Harris, 780 N.Y.S.2d 145 (1st Dep't 2004), lv. denied, 3 N.Y.3d 755 (2004).
Parole release does not, in general, moot a habeas petition challenging the underlying conviction. See Mabry v. Johnson, 467 U.S. 504, 507 n. 3 (1984) (citing Jones v. Cunningham, 371 U.S. 236, 243 (1963) ("While petitioner's parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the `custody' of the members of the Virginia Parole Board within the meaning of the habeas corpus statute. . . .")).
At issue is whether the trial court's refusal to charge the jury on the defense of agency with respect to the possession with intent to sell count, the sole count of which petitioner was convicted, so infected the trial as to deny petitioner his due process right to a fair trial. For the following reasons, this Court finds that petitioner's constitutional rights were violated. Accordingly, the habeas corpus petition is granted and petitioner's conviction is vacated, subject to re-trial.
I. BACKGROUND
The background facts are taken from the Brief For Defendant-Appellant submitted by petitioner to the Appellate Division, First Department on appeal. See Declaration of Frederick H. Wen, Assistant Attorney General, in Opposition to Petition for a Writ of Habeas Corpus ("Wen Decl."), Ex. B.
A. Introduction
In the early morning hours of February 16, 2001, petitioner was arrested at the corner of 47th Street and Eighth Avenue in Manhattan after Police Officer Joseph Barosa, situated at a rooftop "observation post," observed him engage in what he believed to be narcotics transactions. At 12:45 a.m., Officer Barosa, using binoculars, noticed petitioner on the corner of West 47th Street and Eighth Avenue. Two men approached petitioner and, after a brief conversation, shook their heads and walked away. Fifteen minutes later, Officer Barosa saw Ronald Paine approach petitioner. After a brief conversation, the two men walked to the front of 310 West 47th Street. After a hand-to-hand exchange ensued, Paine walked into the vestibule of a nearby business where Officer Barosa watched him smoke what appeared to be crack cocaine. Officer Barosa radioed his field team and both Paine and petitioner were taken into custody. Petitioner was found in possession of seventeen glassine bags of crack cocaine.
New York County indictment number 1098/01 subsequently charged petitioner with Criminal Sale of a Controlled Substance In or Near School Grounds, Criminal Sale of a Controlled Substance in the Third Degree, and Criminal Possession of a Controlled Substance in the Third Degree (possession with intent to sell). Although petitioner was acquitted of the sale counts, the jury convicted him of the possession with intent to sell count.
B. Petitioner's Grand Jury Testimony
At the trial, the prosecutor read into the record petitioner's redacted grand jury testimony. In his grand jury testimony, petitioner denied the accusation that he sold drugs to Ronald Paine on the night of his arrest. Moreover, petitioner stated that he did not sell any drugs to anyone on the night in question. Petitioner explained to the grand jury that he was a drug user who, on the night of his arrest, ran into a female companion (a prostitute) with whom he had previously shared drugs. The prostitute gave petitioner some money (approximately $175) and, at her request, he purchased drugs for both of them to share later that evening. The prostitute told petitioner to meet her on the corner at 47th Street where petitioner waited, buying himself a pizza and soda. Petitioner further testified that he arrived at the Port Authority around 7:30 p.m., went to Burger King, and talked with some friends. He then "hustled up a couple of dollars" in the Port Authority by helping people with their bags and providing them with information. When petitioner encountered the prostitute, she was walking with a prospective client. Because the prostitute was otherwise engaged, she gave petitioner some money and asked him to meet her at 47th Street later on. Petitioner had about forty-five or fifty dollars of his own money. Petitioner bought twenty bags of crack cocaine from a street runner, not Paine, whom he knew by occupation but not by name. Before his arrest, petitioner used three of the twenty bags of crack cocaine he purchased.
A reasonable assumption is that petitioner purchased these twenty bags for approximately $200, based on the money he had on hand ($175 from the prostitute and $45 to $50 of his own money) and the fact that drugs are often sold in "dime bags" which sell for ten dollars apiece.
C. The Requested Agency Charge
During the pre-charge conference, defense counsel requested that the court charge Criminal Possession of a Controlled Substance in the Seventh Degree as a lesser included offense of the possession with intent to sell count. Counsel argued that the jury could reject the police officer's observations and conclude that the bags recovered from petitioner constituted "misdemeanor possession" ( i.e. possession without an accompanying intent to sell). The prosecutor opposed the request and the court initially denied it, holding that petitioner's admitted intent to share the drugs made out an `intent to sell' under the statutory definition.
Based on petitioner's grand jury testimony that he bought the drugs to share with his prostitute acquaintance, defense counsel requested that the court charge the jury with the agency defense (as a defense to the possession with intent to sell count). The court improperly responded that the agency defense only applies when the buyer is a police officer but offered counsel the opportunity to submit case law to the contrary. The court then denied defense counsel's request for an agency charge and permitted the prosecutor to argue in summation that petitioner's acknowledged intent to give the cocaine to his companion met the court's definition of intent to sell. After the prosecutor made his closing argument, defense counsel moved for a mistrial, arguing that the court's refusal to charge the agency defense precluded her from attacking the prosecutor's argument that intent to share was the legal equivalent of intent to sell. The court denied defense counsel's motion.
The agency defense applies when a person is buying drugs for himself and as an agent for another. "The agency defense recognizes that if a person is acting only in the interest of the buyer in obtaining drugs, he cannot at the same time be acting as or in the interest of the seller. In such case, he may be guilty of the crime of possessing but not of selling the drugs." People v. Andujas, 79 N.Y.2d 113, 117 (1992) (citing People v. Lam Lek Chong, 45 N.Y.2d 64, 74 (1978)).
Before the judge charged the jury, counsel reiterated that the agency defense applies where a defendant buys drugs for a friend. The prosecutor responded that the defendant needed to act solely on behalf of the buyer in order for the defense to apply. The court, citing People v. Lam Lek Chong, acknowledged that it had been mistaken in its belief that the agency defense applies only when a police officer is involved. Nevertheless, the court stated that to warrant an agency defense charge, the defendant must have acted "merely" as an agent. The court noted petitioner's statement that the bags were for "both of us," and that he used three of the bags by himself. The court concluded that because petitioner's statement indicated dominion and control, there was no reasonable view of the evidence to support instructing the jury on the agency defense.
Counsel then argued that whether petitioner received a benefit from purchasing the drugs by using some of them himself was simply a factor for the jury to consider when deciding whether the defendant acted as an agent. The prosecutor argued that the agency charge was not applicable because petitioner did not act solely on behalf of the prostitute. The court cut short the discussion, stating that counsel had made her point, and denied the agency defense charge once again. After summations, the court declared that it would submit the Criminal Possession of a Controlled Substance in the Seventh Degree charge as a lesser included offense of the possession with intent to sell charge. Accordingly, the court submitted the following counts to the jury: Criminal Sale of a Controlled Substance in the Third Degree; Criminal Sale of a Controlled Substance In or Near Schools; Criminal Possession of a Controlled Substance in the Third Degree (possession with intent to sell); and Criminal Possession of a Controlled Substance in the Seventh Degree (as a lesser included offense).
The court instructed the jury that the definition of "to sell" included "to give or dispose of." The court defined "sell" as "to sell, exchange, give or dispose of to another or to offer or agree to do the same." At the conclusion of the jury charge, counsel once again objected to the court's refusal to charge the agency defense and renewed her prior objections. The jury acquitted petitioner of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Sale of a Controlled Substance In or Near Schools but convicted him of Criminal Possession of a Controlled Substance in the Third Degree (possession with intent to sell).
D. State Appellate Proceedings
On direct appeal, petitioner argued that the trial court's refusal to charge the agency defense with respect to the possession with intent to sell count denied him his due process right to a fair trial and his right to present a defense. Citing People v. Argibay, petitioner argued that his grand jury testimony, viewed in the light most favorable to the defense, met the reasonable view standard of "at least some evidence, however slight, to support the inference that the supposed agent was acting, in effect, as an extension of the buyer." Petitioner concluded that the court's denial of the agency charge, which denied him his right to a fair trial, was not harmless.
45 N.Y.2d 45, 55 (1978).
The Appellate Division, First Department affirmed the conviction. Without addressing petitioner's grand jury testimony that he did not sell drugs on the day in question, the court held that petitioner did not rebut the testimony of Officer Barosa who stated that he observed petitioner engage in drug transactions (a claim rejected by the jury). According to the First Department, "[d]efendant's unexplained activity on the street corner, as described by Officer Barosa, [was] clearly consistent with possession with intent to sell." The First Department further held that "the amount of the asserted purchase on behalf of defendant's purported acquaintance (20 bags) is inconsistent with a casual transaction undertaken merely as an accommodation to another drug user." Quoting People v. Herring, the First Department held that the agency defense need not be charged unless a "`reasonable view of the evidence supports the theory that [the] defendant was acting only on behalf of the buyer.'" The First Department affirmed the trial court's denial of the agency charge, stating as follows:
See People v. Harris, 780 N.Y.S.2d at 146.
See id. at 146 ("Defendant offered no evidence to rebut the testimony of Officer Barosa, which the court fully credited."). This statement is technically correct in light of the fact that petitioner's grand jury testimony was read into the record at trial at the request of the prosecutor. See id. ("Defendant's testimony before the grand jury was read as part of the People's case."). However, the subsequent characterization of Officer Barosa's testimony as "unrebutted" is a misstatement of fact given petitioner's grand jury testimony wherein he denied selling drugs to Ronald Paine, or anyone else, on the night of his arrest. See 8/8/06 Letter from Frederick H. Wen, respondents' counsel, at 1 ("First, respondent[s] want to correct pages 5 and 6 of our memorandum because the District Attorney acknowledged that petitioner had testified before the grand jury, the testimony of which was read into the record and used against him at trial, that he had not sold drugs to Paine, and that he had bought, not sold, drugs that day in question."). Accordingly, such characterization is not entitled to the presumption of correctness afforded by 28 U.S.C. § 2254(e)(1). See Whitaker v. Meachum, 123 F.3d 714, 715 n.l (2d Cir. 1997) ("A state court's findings of fact are entitled to a "presumption of correctness" on federal collateral review unless those findings are not `fairly supported by the record' as a whole. . . .") (quoting Sumner v. Mata, 449 U.S. 539, 550 (1981)).
People v. Harris, 780 N.Y.S.2d at 147.
Id.
Id. at 146 (quoting People v. Herring, 83 N.Y.2d 780, 782 (1994)).
There is no reasonable view of the evidence that supports the inference of agency. As [the] Supreme Court noted, "here we have no evidence of a purchase or delivery." The unrebutted testimony of Officer Barosa is that defendant was seen, on the corner of the street, offering glassine envelopes to two men, who shook their heads and walked away. Some 15 minutes later, defendant was observed, on the same street corner, exchanging a small object with Ronald Paine, who then entered a nearby vestibule and smoked what the officer thought to be crack cocaine. It is clear that defendant was the party being approached. Moreover, defendant concedes that he did not purchase any drugs from Ronald Paine, identifying the source of his 20-bag purchase only as an unnamed "street runner." Since defendant conceded that the exchange with Paine was not a purchase, Supreme Court was correct in construing the evidence against defendant as indicative of a sale based on the testimony given by Officer Barosa. Therefore, defendant's request for an agency charge was properly denied upon the record before the court. Moreover, defendant's testimony as to where he might have obtained the drugs approximately two hours earlier does not raise a factual issue as to the subsequent attempted sales observed by Officer Barosa so as to support an agency charge.
Id. at 147 (emphasis added).
In a timely application for leave to appeal to the New York State Court of Appeals, petitioner argued that the First Department violated the requirement that his grand jury testimony be evaluated in the light most favorable to the defense. Furthermore, petitioner stated that his testimony directly contradicted Officer Barosa's assertion that he engaged in drug transactions. Citing Cupp v. Naughten, petitioner further argued that the failure to charge the agency defense in this case "so infected the entire trial that the resulting conviction violates due process." The New York State Court of Appeals denied the application for leave to appeal.
414 U.S. 141, 147 (1973).
See People v. Harris, 3 N.Y.3d 755 (2004).
II. LEGAL STANDARD
This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA provides that a federal court can grant a writ of habeas corpus to a state prisoner only if the state court's denial of relief "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." As explained by the Supreme Court, a state-court decision is "contrary to" clearly established federal law in the following instances:
First, a state-court decision is contrary to this Court's precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court's precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.
Williams v. Taylor, 529 U.S. 362, 405 (2000).
With regard to the "unreasonable application" prong, the Supreme Court has stated that
a state-court decision can involve an "unreasonable application" of this Court's clearly established precedent in two ways. First, a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case. Second, a state-court decision also involves an unreasonable application of this Court's precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.
Id. at 407.
In order for a federal court to find a state court's application of Supreme Court precedent to be unreasonable, the state court's decision must have been more than incorrect or erroneous; "[t]he state court's application of clearly established law must be objectively unreasonable." Thus, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."
Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
Williams, 529 U.S. at 411.
III. DISCUSSION
According to the Supreme Court, "[b]efore a federal court may overturn a conviction resulting from a state trial in which [a disputed] instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." The Second Circuit has similarly held that "`[i]n order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law.'"
Cupp, 414 U.S. at 146.
Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)).
There are three questions that must be answered in the affirmative before a federal court can grant a writ of habeas corpus based on a state court's refusal to give a particular jury charge. First, was the jury charge in dispute required as a matter of New York state law? The second question asks "whether the failure to give such a charge was sufficiently harmful to make the conviction unfair." In other words, "did the failure to give the requested charge violate the standard set out in Cupp." In assessing whether the failure to give a particular charge resulted in a denial of due process, a court must determine "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Finally, the third question asks whether the state court's failure is remediable by habeas corpus, i.e., did the state court's refusal constitute an unreasonable application of clearly established federal law?
See id. at 124.
See id. at 123 ("a finding that the petitioner was erroneously deprived of a jury instruction to which he was entitled under state law is the first step in the determination whether that error violated the petitioner's federal due process rights"). See also Jackson v. Edwards, 404 F.3d 612, 621 (2d Cir. 2005).
Jackson, 404 F.3d at 621.
Davis, 270 F.3d at 124.
Cupp, 414 U.S. at 147.
See Davis, 270 F.3d at 124; Jackson, 404 F.3d at 621.
A. The Agency Charge Was Required Under New York Law
"As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." "A defendant is entitled to a charge on agency if, under some reasonable view of the evidence, there is evidence that the defendant acts as the mere instrumentality of the buyer." The evidence must be viewed in the light most favorable to the defendant. The reasonable view standard is lenient: the agency charge should be given "where there is at least some evidence, however slight, to support the inference that the supposed agent was acting, in effect, as an extension of the buyer."
Mathews v. United States, 485 U.S. 58, 63 (1988) (citing Stevenson v. United States, 162 U.S. 313 (1896)).
People v. Mauras, 473 N.Y.2d 262, 262 (2d Dep't 1984).
See People v. Delaney, 765 N.Y.S.2d 696, 698 (3d Dep't 2003). Here, the First Department failed to view the evidence in the light most favorable to petitioner when it reached the conclusion that "[t]here is no reasonable view of the evidence that supports the inference of agency" based on the erroneous characterization of Officer Barosa's testimony as "unrebutted." 780 N.Y.S.2d at 147. See supra note 9.
Argibay, 45 N.Y.2d at 55 (emphasis added).
Here, petitioner was clearly entitled to have the jury instructed as to the agency defense. It is well-settled under New York law that "[o]ne who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics."
[I]n a prosecution for the sale of a controlled substance, a person who acts solely to accommodate the buyer acts as the alter ego of the recipient. Since the Penal Law does not impose criminal sanctions for the mere purchase of narcotics, the agent is held to the same degree of criminal liability as his principal from whom culpability is derived. Thus, where there is some reasonable view of the evidence which lends support to the claim that the defendant acted as an instrumentality of the buyer, upon a timely request, the court should instruct the jury on the agency defense.
Lam Lek Chong, 45 N.Y.2d at 73 (quotation marks and citations omitted).
People v. Feldman, 50 N.Y.2d 500, 503-04 (1980) (per curiam).
The theory underlying the agency defense is that one who acts as a procuring agent for a buyer is a principal or conspirator in the purchase, but not the sale, of the contraband in issue. The rule reflects the legislative intent, under the New York statutory scheme, of generally imposing different liabilities on buyers and sellers of drugs. "The agency defense is consistent with the legislative scheme because it requires that one who acts solely as an agent for a buyer of narcotics should incur no greater criminal liability than that of the buyer."
See People v. Roche, 45 N.Y.2d 78, 82 (1978).
See Lam Lek Chong, 45 N.Y.2d at 73-74.
People v. Ortiz, 76 N.Y.2d 446, 449 (1990).
"The determination as to whether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the jury to resolve on the circumstances of the particular case." In making this determination, the jury may consider the following:
Lam Lek Chong, 45 N.Y.2d at 74.
the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction. But basically the jury must rely on its own common sense and experience to determine whether, under the circumstances, the defendant was in fact accommodating a friend or was simply a streetwise peddler attempting to avoid the penalties for sale.
Id. at 75.
"Under New York law, a defendant can be shown to have anticipated a gratuity and nonetheless have been acting solely as an agent of the buyer." As explained by the New York Court of Appeals,
the fact that the defendant anticipated or received a profit from the sale may be sufficient to establish his intent to sell at the time of the transfer. But it is not unlikely that the buyer, who has obtained drugs with the aid of the defendant, will offer the defendant a share, a tip or reimbursement for expenses as a token of friendship or appreciation for the favor. This frequently happens when the buyer has purchased the drugs or marihuana for consumption and the defendant shares his tastes or is himself an addict. Of course receipt of any benefit, particularly a substantial reward promised in advance may be sufficient, as a matter of fact, to show that the defendant did not act solely to accommodate the buyer. But receipt of some incidental benefit, does not necessarily or even ordinarily alter the relationship between the parties, the nature of the transaction or the defendant's culpability.
Perez v. Keane, No. 95 Civ. 2640, 1996 WL 599695, at *7 (S.D.N.Y. Oct. 17, 1996) (citing Roche, 45 N.Y.2d at 82).
Lam Lek Chong, 45 N.Y.2d at 75.
Thus, the First Department has held that the agency defense "`is not intended to protect a person who arranges a drug transaction for the purpose of earning the equivalent of a finder's fee or broker's commission'" but should rather apply to "`a person who performs a `favor,' possibly rewarded by a tip or incidental benefit.'"
People v. Newland, 751 N.Y.S.2d 848, 849 (1st Dept. 2002) (quoting People v. Elvy, 715 N.Y.S.2d 247, 248 (1st Dept. 2000)).
Considering petitioner's grand jury testimony in the light most favorable to the defense, there was certainly a reasonable view of the evidence that he purchased the drugs for himself and as an agent of his prostitute companion. First, petitioner and the prostitute had a prior relationship and they previously used drugs together. Second, the prostitute, not petitioner, suggested the purchase. Third, petitioner was not the owner of the drugs, but obtained them from a third person. Fourth, petitioner demonstrated no salesman-like behavior toward the prostitute: he did not tout the quality of the drugs or negotiate over prices.
The agency defense is not defeated by the fact that petitioner acted both on his own behalf, and as an agent of the prostitute, in purchasing the drugs in question. See Andujas, 79 N.Y.2d at 114 ("When a defendant charged with selling drugs to an undercover officer has purchased a portion of the drugs for his own use and the balance as agent for the officer, he may — notwithstanding his personal interest in a portion of the drugs as a purchaser — nevertheless be entitled to an agency defense as to the balance.").
All of these factors could support the conclusion that petitioner was acting as an agent of the prostitute when he purchased twenty bags of crack cocaine. Furthermore, the fact that petitioner used three of the bags by himself, without prior permission from the prostitute, does not defeat the agency defense. People v. Spradley, where the defendant "purchased $20 worth of crack cocaine from a dealer named `Toots,' on behalf of an undercover officer," provides a helpful analysis in a very similar situation. There, the defendant "hoped she could smoke some of the crack cocaine she delivered to the undercover officer in exchange for sex. She also testified that before she turned the drugs over to the officer, she retained for her own use a portion of what she received from `Toots' and was `supposed to give' the undercover officer." The jury charge given in Spradley "permitted the jury to discount the agency defense if it found that the defendant derived any benefit at all from the transaction." Furthermore, the court denied defendant's request for an additional charge instructing the jury that the intent to benefit incidentally from the purchase was a factor to be considered in defendant's favor. The appellate court found this error to be particularly prejudicial "since the jurors could infer from the defendant's testimony that she was acting in her own right as purchaser of part of the drugs." Here, a juror could reasonably infer that petitioner contributed some of his own money in purchasing the twenty bags of crack cocaine. In short, petitioner's testimony easily met the "reasonable view" standard of "at least some evidence, however slight, to support the inference that the supposed agent was acting, in effect, as an extension of the buyer." Petitioner was therefore entitled to have the agency defense submitted to the jury and the trial court's refusal to do so was error.
670 N.Y.S.2d 882, 883 (2d Dep't 1998).
Id.
Id.
See id.
Id.
See supra note 5.
Argibay, 45 N.Y.2d at 55.
B. The Trial Court's Refusal to Charge the Agency Defense Resulted in a Violation of Due Process
Having identified an error of state law, the next step is to determine whether there was a violation of federal law. As stated earlier, the test is whether the state court's refusal to give the agency defense instruction "so infected the entire trial that the resulting conviction violates due process." The test is met where the denial of the agency defense charge "was sufficiently harmful to make the conviction unfair."
Cupp, 414 U.S. at 147.
Davis, 270 F.3d at 124.
Instead of submitting the agency defense, the court permitted the prosecutor to argue in summation that petitioner's intent to "give some of these bags to his friend, the prostitute" was an intent to sell because "the intention to give something qualifies as the intention to sell." The court then instructed the jury that the statutory definition of "to sell" meant "to sell, exchange, give or dispose of to another or to offer or agree to do the same." Although this
This is the statutory definition of "sell" contained in New York's Penal Law. See McKinney's Penal Law § 220.00(1) (2007). The New York pattern jury instructions for Criminal Possession of a Controlled Substance in the Third Degree define "sell" to mean "sell, exchange, give or dispose of to another." CJI2d[NY] Penal Law § 220.16. The New York pattern jury instructions for the defense of agency are set forth as follows:
AGENCY
After instructing the jury on the defined terms of the appropriate charged offense, add the following instruction on the defense of agency. Then, in listing the elements of the offense, add, as the final element, the following:
"and, #. That the defendant was not the agent of the buyer."]
In this case, with respect to this count [and count(s) ( specify )], the defendant has raised the agency defense.
Under our law, a person is not guilty of selling a controlled substance [marihuana] [ or of possessing a controlled substance (marihuana) with the intent to sell it] if he/she was acting as the agent of the buyer.
An agent of a buyer is a person whose sole concern in a drug transaction is not the selling of drugs but the purchasing or acquiring of drugs for another [ or for another and himself/herself].
By contrast, a person is not an agent of the buyer if such person participates in a drug transaction for the purpose of selling or aiding another to sell. [Nor is a person the agent of the buyer if he/she participates in the transaction for the purpose of independently brokering the sale between the buyer and the seller.]
In order to determine whether the defendant in this case was an agent of the buyer, you must consider all the evidence relating to the circumstances surrounding the transaction, including the role the defendant played in it.
Examples of factors that would support the agency defense include the following:
1. That, prior to the transaction, the defendant and ( specify name of buyer ) were known to each other and had a relationship.
2. That ( specify name of buyer ), and not the defendant, first suggested the transaction.
3. That the defendant said nothing to promote the sale.
4. That the defendant did not receive any benefit for his/her participation in the alleged sale. Or, if the defendant received a benefit from ( specify name of buyer ), it was incidental, for example, in the nature of a share of the drug or a tip, as a token of appreciation, and not in consideration for selling.
5. That prior to the transaction, the ( name of controlled substance [marihuana] ) in question was controlled exclusively by a person other than the defendant.
[6. That the defendant had not at any other time engaged in the sale of a controlled substance [marihuana] (or, the possession of a controlled substance [marihuana] with the intent to sell it).]
Examples of factors that would not support the agency defense include the following:
1. That, prior to the transaction, the defendant and ( specify name of buyer ) were not known to each other and had no relationship.
2. That the defendant, and not ( specify name of buyer ), first suggested the transaction.
3. That the defendant touted the quality of the drug or otherwise promoted the sale.
4. That the defendant received a benefit for his/her participation in the transaction which was not merely a token of appreciation from ( specify name of buyer ).
5. That, prior to the transaction, there were indications that the defendant had some control over the drugs.
[6. That the defendant had at some other time engaged in the sale of a controlled substance [marihuana] (or, the possession of a controlled substance [marihuana] with the intent to sell it).]
You may consider these and any other factors you believe to be relevant to determine whether the defendant acted solely as the agent of the buyer.
[I remind you that the agency defense relates only to this count (and count[s] [ specify ]). It does not relate to, and thus may not be considered, with respect to any other count.]
Finally, although the defendant has raised the agency defense, that does not shift the burden of proof. The People are required to prove beyond a reasonable doubt that the defendant was not an agent of ( specify name of buyer ).
charge is technically correct, by refusing to charge the agency defense, the court, in effect, directed the jury to convict petitioner of possession with intent to sell simply for intending to "give" the bags of cocaine to his female companion.
This is not a case of a minor error of state law in explaining the legal standards to the jury. It is not a case of a refusal to instruct on a fantastic, improbable defense that the jury was unlikely to adopt. Nor was the absence of an instruction on justification mitigated by other portions of the charge.
Davis, 270 F.3d at 132.
Under the circumstances, there is a substantial likelihood that the jury would have found in petitioner's favor on the possession with intent to sell count if it was properly instructed with regard to the agency defense. As in Davis, the effect of the state court's error was "catastrophic" in that it deprived petitioner of a defense on which he had "a significant possibility of prevailing" and virtually ensured his conviction on the possession with intent to sell count. The "enormous practical importance" of this error so seriously infected "the entire trial" that its result "cannot be considered fair." Accordingly, under the Cupp standard, petitioner's due process rights were violated as a result of the trial court's failure to charge the agency defense.
Id.
Id.
C. The State Court's Error Is Remediable by Habeas Corpus
The state trial court's refusal to charge the agency defense, and the Appellate Division's affirmance of that refusal, were "unreasonable applications of clearly established federal law" pursuant to 28 U.S.C. § 2254(d)(1). In applying the "unreasonable application" test, a federal court should ask "whether the state court's application of clearly established federal law was objectively unreasonable." This standard "`falls somewhere between merely erroneous and unreasonable to all reasonable jurists.'" While the test requires "`[s]ome increment of incorrectness beyond error, . . . the increment need not be great; otherwise habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'"
Williams, 529 U.S. at 409; Harris v. Kuhlman, 346 F.3d 330, 344 (2d Cir. 2003).
Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002) (quoting Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000)).
Id. (quoting Francis v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (emphasis in original)).
In Davis, the Second Circuit held that the "unreasonable application" clause was clearly applicable where the petitioner had "a clear right under New York law to have the jury consider his defense, and the trial in which he was denied that right was egregiously at odds with the standards of due process propounded by the Supreme Court in Cupp." As in Davis, petitioner had a clear right to have the jury consider his agency defense. Moreover, in light of the court's charge regarding the definition of sell, the case against petitioner was "open and shut." Had the court instructed the jury as to the agency defense, petitioner, in all likelihood, would have been acquitted of the possession with intent to sell count. Thus, the trial court's refusal to charge the agency defense, and the appellate court's affirmance of that refusal, were so egregiously at odds with the standards of due process propounded by the Supreme Court in Cupp that they constituted unreasonable applications of clearly established federal law under 28 U.S.C. § 2254(d)(1).
Davis, 270 F.3d at 133.
Id. at 131.
IV. CONCLUSION
For the foregoing reasons, the instant habeas petition is granted and petitioner's conviction for Criminal Possession of a Controlled Substance in the Third Degree is vacated. The State of New York may, at its option, re-try petitioner on this count within ninety (90) days of this Opinion and Order. The Clerk of the Court is directed to close this case.
SO ORDERED: