STATE OF NEW YORK
________________________________________________________________________
4519
2011-2012 Regular Sessions
IN SENATE
April 8, 2011
___________
Introduced by Sen. SALAND -- (at request of the Office of Court Adminis-
tration) -- read twice and ordered printed, and when printed to be
committed to the Committee on Codes
AN ACT to amend the penal law, in relation to the law of agency
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The penal law is amended by adding a new section 40.20 to
2 read as follows:
3 § 40.20 Agency.
4 1. A person who acts solely as an agent of the buyer in a sale of a
5 controlled substance cannot be convicted of the crime of selling that
6 controlled substance or of possessing it with intent to sell.
7 2. Notwithstanding anything to the contrary in subdivisions three or
8 six of section 300.40 of the criminal procedure law, when the defendant
9 places in issue at trial that he or she lacks culpability for selling,
10 or possessing with intent to sell, a controlled substance, and there is
11 a reasonable view of the evidence to support the claim, as provided for
12 in the preceding subdivision, that the defendant, when he or she
13 possessed the controlled substance sold, was acting solely as an agent
14 of the buyer:
15 (a) the defendant is entitled, upon request, to have the jury consider
16 the crime of criminal possession of a controlled substance in the
17 seventh degree during its deliberation. If the defendant fails to
18 request such a charge before the jury retires to begin its deliberation,
19 the right to have the jury consider it is waived and any resulting
20 conviction may not thereafter be challenged on the ground the jury did
21 not consider criminal possession of a controlled substance in the
22 seventh degree.
23 (b) the prosecutor is entitled, upon request, to have the jury consid-
24 er the crime of criminal possession of a controlled substance in the
25 seventh degree. If the prosecutor fails to make a request before the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09517-01-1
S. 4519 2
1 jury retires to deliberate, the right to have the jury consider the
2 seventh degree possession charge is waived.
3 (c) when the court submits criminal possession of a controlled
4 substance in the seventh degree pursuant to this section, the offense
5 shall be considered a lesser included offense with regard to the greater
6 offense under which it is charged.
7 3. A person who acts solely as an agent of the buyer in the sale of
8 marihuana cannot be convicted of the crime of selling that marihuana.
9 4. Notwithstanding anything to the contrary in subdivisions three or
10 six of section 300.40 of the criminal procedure law, when the defendant
11 places in issue at trial that he or she lacks culpability for selling,
12 or possessing with intent to sell, marihuana and there is a reasonable
13 view of the evidence to support the claim, as provided in the preceding
14 paragraph, that the defendant, when he or she possessed the marihuana
15 sold, was acting solely as an agent of the buyer:
16 (a) the defendant is entitled, upon request, to have the jury consider
17 the appropriate lesser offense of criminal possession of marihuana as
18 defined by section 221.10, 221.15, 221.20 or 221.25 of this chapter
19 during its deliberations. The trial court shall in its discretion submit
20 the most appropriate classification of the marihuana charge based upon a
21 reasonable view of the evidence admitted during the trial. If the
22 defendant fails to request a marihuana possession charge before the jury
23 retires to begin its deliberation, the right to have the jury consider
24 it is waived and any resulting conviction may not thereafter be chal-
25 lenged on the ground the jury did not consider such a charge.
26 (b) the prosecutor is entitled, upon request, to have the jury consid-
27 er the appropriate lesser offense of criminal possession of marihuana as
28 defined by section 221.10, 221.15, 221.20 or 221.25 of this chapter
29 during its deliberations. The trial court shall in its discretion submit
30 the most appropriate classification of the marihuana charge based upon a
31 reasonable view of the evidence admitted during the trial. If the prose-
32 cutor fails to make a request before the jury retires to deliberate, the
33 right to have the jury consider the seventh degree possession charge is
34 waived.
35 (c) when the court submits criminal possession of marihuana pursuant
36 to this section, the offense shall be considered a lesser included
37 offense with regard to the greater offense under which it is charged.
38 § 2. This act shall take effect thirty days after it shall have become
39 a law and shall apply to all pending trials where jury deliberations
40 have not yet commenced.
