By Daniel Wiessner
ALBANY, N.Y., Nov 29 (Reuters) - The New York Court of
Appeals has upheld a man's conviction for facilitating a drug
sale, rejecting his claim that because he acted on behalf of the
buyer, he had not committed a crime.
In New York, the court noted, people charged with crimes
after helping to orchestrate drug deals may assert the "agency
defense," arguing that because they acted as agents of the
buyers, they are not guilty of selling or possessing drugs.
In a 5-1 decision, the Court of Appeals on Thursday ruled
for the first time that the agency defense does not apply when a
defendant is charged with criminal facilitation.
The court upheld the facilitation conviction of Tyrone
Watson, who in 2007 helped an undercover police officer buy
crack from an alleged drug dealer in Queens.
"It would be incongruous to allow a facilitator, who clearly
acts as the buyer's conduit to the drug seller and actively
participates in the consummation of the transaction, to escape
all criminal liability," Judge Victoria Graffeo wrote for the
Judges Carmen Ciparick, Eugene Pigott, Susan Read and Robert
According to the court, in 2007 an undercover narcotics
officer approached Watson and asked him if he knew where to buy
drugs. Watson took the officer to a local drug spot, where he
procured $40 worth of crack from an alleged dealer and gave it
to the officer, the court said.
Watson, who made no money from the deal, and the alleged
dealer were arrested. Watson was charged with felony sale of a
controlled substance and the misdemeanors of criminal
facilitation and possession. The alleged dealer was eventually
acquitted of drug sale charges.
Under Section 115 of the Penal Law, a person is guilty of
criminal facilitation "when, believing it probable that he is
rendering aid to a person who intends to commit a crime, he
engages in conduct which provides such person with means or
opportunity for the commission thereof and which in fact aids
such person to commit a felony."
During his bench trial, Watson moved to dismiss the sale
count, arguing that as an agent of the buyer he could not be
convicted of the sale.
Watson in 2008 was convicted of facilitation and possession
and sentenced to one year. But Acting Queens Supreme Court
Justice John Latella acquitted Watson of drug sale charges,
citing the agency defense, the Court of Appeals said.
On appeal, Watson pointed to the 2009 Supreme Court case
Abuelhawa v. United States, in which the court held that a drug
buyer cannot be guilty of facilitation. Watson claimed this
holding should apply to him, since the trial judge had
acknowledged he was acting on behalf of the buyer.
The Appellate Division, Second Department, last year upheld
The Court of Appeals on Thursday affirmed, finding that the
agency defense was applicable only to the drug sale charge, and
not the facilitation charge.
In dissent, Chief Judge Jonathan Lippman said the majority's
ruling went against the public policy underpinning the agency
defense, which was developed to ensure that "leniency ... be
shown to low-level conduits, acting on behalf of purchasers with
"Where a court has determined that defendant acted solely in
the interests of the buyer, as here, he cannot be guilty of also
aiding the seller," Lippman wrote.
Watson's attorney, Natalie Rea, said the impact of
Thursday's ruling will likely be limited because "in New York
City, it is very, very unusual for a prosecutor to charge
facilitation" in a drug case.
In a statement, Queens District Attorney Richard Brown said
he was "grateful that the court answered an open question of
The case is the People v. Tyrone Watson, New York State
Court of Appeals, No. 199.
For the prosecution: Queens Assistant District Attorney
For Watson: Natalie Rea of the Legal Aid Society.
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