This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 45 

The People &c.,

 Respondent,

 v.

Jose Valentin, 

 Appellant.

Kate Mollison, for appellant.

Brian R. Pouliot, for respondent.

DiFIORE, Chief Judge:

We are asked to determine whether the People are

permitted to introduce evidence of a defendant's prior drug sale

conviction on their direct case when a defendant asserts an

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agency defense supported solely by portions of the People's casein-chief. We hold that, under these circumstances, the trial

court may, in its discretion, entertain a People's application

pursuant to People v Molineux (168 NY 264 [1901]) and allow into

evidence a defendant's previous drug sale conviction on the issue

of the intent to sell the drugs. 

On the afternoon of May 21, 2010, several undercover

officers were conducting a "buy-and-bust" operation near 110th

Street and First Avenue in Manhattan. After watching defendant

and another individual, Jose Barrios, walking together for

approximately 40 minutes, one of the officers observed Barrios

hand defendant money. Defendant then crossed the street and

entered a 20-story residential building. After a few minutes,

defendant exited the building and walked directly over to

Barrios, who had since moved to another corner. The officer

observed defendant hand what was later revealed to be glassine

envelopes of heroin to Barrios, who then placed the glassine

envelopes in his right front pants pocket. As the pair walked

away together, they were stopped by police. The arresting

officer recovered the two glassine envelopes of heroin from

Barrios's right pants pocket and another officer searched

defendant and recovered eight dollars. 

After completion of jury selection, defense counsel,

who did not present any defense witnesses or call defendant to

testify at trial, gave notice to the court and the People that

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there was "a possibility" that he would present an agency

defense. Thereafter, defense counsel, in his opening statement,

asked the jury to consider whether defendant engaged in

"salesman-like[] conduct," whether he had customers other than

Barrios, and whether his behavior was typical of a seller or,

rather, someone who was "walk[ing] with his buddy."

During cross-examination of the police officers,

defense counsel honed in on defendant's behavior and whether

defendant was simply acting as a mere extension of the buyer. 

Specifically, on cross-examination of the officer who was acting

as "ghost"1 in the narcotics surveillance that day, defense

counsel elicited that the officer observed defendant and Barrios

standing together engaged in conversation, in support of his

argument that the buyer was just a friend. Along the same lines

of inquiry, defense counsel elicited from the officer that in the

context of general narcotics operations, the officer sometimes

knew "who the players are" but that defendant's name and picture

had never come up in the officer's investigation of this drugprone area. Finally, defense counsel, disputing the profit

motive for the transfer of drugs, elicited that the going price

of the two envelopes of heroin found on Barrios was usually about

ten dollars per item. Only eight dollars was found on defendant.

1 The officer testified that as "ghost," he was ensuring

that the undercover officers were safe and relaying messages to

the supervisor of the field team.

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In cross-examining the arresting officer, defense

counsel elicited that the police had observed defendant and

Barrios walking together on the street for a period of

approximately 40 minutes, in support of an argument that such

behavior was consistent with a friendship and not a business

relationship. Defense counsel also brought out that defendant

was not found with any prerecorded money, typically used in

undercover buys, and that the arresting officer did not take any

steps to investigate any phone numbers in defendant's cell phone. 

Midtrial, the People inquired as to defendant's

intention regarding the agency defense, indicating that they

would not rest without the opportunity to present evidence of

defendant's drug sale convictions. Defense counsel responded

that he did not intend to call the buyer or defendant to the

stand, explaining that his strategy was to "flush out" the

testimony of the People's witnesses to support the defense. 

At the close of the People's case but before they

rested, defense counsel again raised the agency defense but

argued that the People should not be permitted to introduce any

of defendant's prior sale convictions because the People's

evidence -- and not the evidence presented by defendant --

provided the basis for the agency defense. The court, after a

colloquy as to whether there was even a factual basis for the

agency charge in the first instance, determined that it would

grant defendant's request for an agency charge, but if the charge

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was to be given, the People would be permitted to introduce

evidence of defendant's prior drug sale conviction. 

After consulting with defendant, defense counsel

requested that the court give the agency charge to the jury. The

trial court, exercising its discretion, determined that, despite

defendant's multiple drug-related convictions, the People would

be permitted to introduce only defendant's 1997 conviction of

criminal sale of a controlled substance in the fifth degree. The

stipulation as to defendant's prior conviction was admitted into

evidence with a proper limiting instruction, whereupon the People

and defense rested and the trial court provided the agency charge

to the jury. Defendant was convicted, upon a jury verdict, of

criminal sale of a controlled substance in the third degree.

On appeal, the Appellate Division held that "[u]pon

granting the defense request for an agency defense based upon

aspects of the People's evidence, the court properly allowed the

People to introduce evidence of defendant's prior drug sale

conviction" (132 AD3d 499, 500 [1st Dept 2015]). The Appellate

Division opined that there was 

"no reason to draw a distinction between the

situation where a defendant testifies or

otherwise elicits evidence to support an

agency defense, and the situation where, as

here, the defendant essentially adopts those

portions of the evidence elicited by the

People that support such a defense; in each

instance, the People have the right of

rebuttal" (id.). 

A Judge of this Court granted defendant leave to appeal (26 NY3d

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1151 [2016]), and we now affirm.

Notwithstanding his request for an instruction to the

jury on the agency defense, defendant argues that since the

defense was supported solely by inferences drawn from the

People's evidence, he did nothing to affirmatively call his

intent into question and, therefore, no Molineux evidence was

permissible. We disagree. 

Under Penal Law § 220.39 (1), "[a] person is guilty of

criminal sale of a controlled substance in the third degree when

he knowingly and unlawfully sells a narcotic drug." To "sell" is

broadly defined as meaning "not only a traditional sale or

exchange for consideration, but also to 'give or dispose of to

another, or to offer or agree to do the same'" (People v Watson,

20 NY3d 182, 185 [2012], quoting Penal Law § 220.00 [1]). As we

have previously explained, "[r]eading the statute literally, any

passing of drugs from one person to another would constitute a

sale" (People v Chong, 45 NY2d 64, 72 [1978]). This Court,

however, long ago recognized that drug sale crimes involve harsh

penalties and that "there are certain cases where the defendant's

mere delivery of the drugs does not appear to involve the same

degree of culpability, or warrant the extreme penalties,

associated with pushing drugs" (id.). Therefore, under the

agency defense, "one who acts solely as the agent of a purchaser

of narcotics cannot be convicted of the crime of criminal sale of

a controlled substance" (People v Roche, 45 NY2d 78, 81 [1978]). 

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In New York, "[t]o be an agent of his buyer, a

narcotics merchant must be a mere extension of the buyer" (People

v Argibay, 45 NY2d 45, 53 [1978]). Indeed, "the agent must have

no direct interest in the contraband being sold," and "[h]is

function must be performed without any profit motive" (Roche, 45

NY2d at 85). Of course, agency is not a defense to the charge of

possession of the drugs (see Chong, 45 NY2d at 74). Accordingly,

the finder of fact is required "to determine the extent of an

intermediary's criminal liability, either as a seller or a

purchaser for another" (Watson, 20 NY3d at 186). As we have

explained, 

"Among other things the jury may consider 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" (Chong, 45 NY2d at 75).

 

That brings us to the admissibility of the Molineux

evidence in this case. "[E]vidence of uncharged crimes is

inadmissible where its purpose is only to show a defendant's bad

character or propensity towards crime" (People v Morris, 21 NY3d

588, 594 [2013]). "However, '[w]hen evidence of uncharged crimes

is relevant to some issue other than the defendant's criminal

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disposition, it is generally held to be admissible on the theory

that the probative value will outweigh the potential prejudice to

the accused'" (id., citing People v Allweiss, 48 NY2d 40, 47

[1979]). Intent is one of the "well-recognized, nonpropensity

purposes for which uncharged crimes may be relevant" (id.). 

Generally, "[e]vidence of prior criminal acts to prove intent

will often be unnecessary, and therefore should be precluded even

though marginally relevant, where intent may be easily inferred

from the commission of the act itself" (People v Alvino, 71 NY2d

233, 242 [1987]). In the context of drug sales in particular,

"intent is [usually] readily inferable from the sale itself and

evidence of prior uncharged crimes is neither necessary nor

permissible to establish it" (id. at 246). Nonetheless, when the

defendant interposes an agency defense -- essentially disputing

that his transfer of drugs to the buyer was with the intent to

sell -- evidence of prior uncharged drug sale allegations is

admissible to establish the element of intent on a sale count

(see id.; see also Chong, 45 NY2d at 75). Even if the evidence

of defendant's prior drug sale is relevant to the issue of

intent, however, the People's request to introduce such evidence

falls to the sound discretion of the trial court and is

"admissible only upon a trial court finding that its probative

value for the jury outweighs the risk of undue prejudice to the

defendant" (People v Till, 87 NY2d 835, 836 [1995]). 

In People v Small (12 NY3d 732 [2009]), a case in which

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the defendant did not present any defense witnesses, this Court

held that, in response to the defendant's attempt to establish an

agency defense during the People's case, the lower court "did not

abuse its discretion in permitting the People to present Molineux

evidence" on the issue of intent (id. at 733). Notably, in

Small, the trial court "granted the People's application to allow

the Molineux evidence midtrial," and this Court held that "there

[was] no requirement that such inquiry or ruling occur before

trial commences" (id.).

In this case, the trial court did not abuse its

discretion in allowing the People to introduce evidence on their

direct case of defendant's prior drug sale conviction on the

element of intent to sell. "[T]he agency charge [is] reserved

for cases 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 (Argibay, 45 NY2d at 55). 

As defendant bears no burden of proof in advancing this defense

(see Roche, 45 NY2d at 85-86), it is immaterial whether a

defendant testifies or presents defense witnesses in support of

the agency defense or, as with the circumstances here, a

defendant requests the agency charge based solely on inferences

which arguably may be drawn from the People's case-in-chief.2 In

both scenarios, the trial court may entertain a Molineux

2 Here, the evidence of defendant's prior drug sale

conviction was presented on the People's case-in-chief before

they rested, not on rebuttal (see CPL 260.30 [7]).

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application as to a defendant's prior drug sale conviction and

determine whether the evidence is more probative than prejudicial

on the disputed issue of defendant's intent to sell. 

On this record, defendant plainly raised the issue of

his intent and particular role in the drug sale as a salesman

based on his arguments to the jury at trial, his crossexamination of the People's witnesses, and his specific request

for an agency charge to the jury. The trial court then conducted

the proper balancing analysis, determining that it would permit

introduction of only one of defendant's prior convictions. Under

these circumstances, the People were properly permitted by the

trial court to use the admissible evidence of defendant's prior

drug sale conviction on the issue of intent in their case-inchief.3 

Accordingly, the order of the Appellate Division should

be affirmed. 

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Chief Judge DiFiore. Judges Rivera,

Stein, Fahey, Garcia and Wilson concur.

Decided May 2, 2017 

3 Defendant's reliance on People v Gonzalez (22 NY3d 539

[2014]) is misplaced. Gonzalez involved the interpretation of

the statutory notice requirement for CPL 250.10 psychiatric

evidence.

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