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 case-
in-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 drug-
prone 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 cross-
examination 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-in-
chief.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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