The Agency Defense: Can the Legislature Help?

The agency defense in New York drug law allows defendants charged with criminal sale or possession of controlled substances to argue they acted solely as agents of the buyer, negating the crime. The New York Court of Appeals first recognized this defense in 1978, but courts have struggled for over thirty years to apply it consistently, with significant logical inconsistencies emerging. Simchi-Levi argues the time has arrived for the New York legislature to expressly codify the agency defense in the Penal Law. The defense rests on the principle that an agent of the buyer cannot be convicted of selling drugs because they are merely extending the buyer's will; no sale occurs when transferring what the recipient already owns. However, federal law and other jurisdictions reject this defense, and federal courts no longer permit it. The article traces the history from the 1978 Court of Appeals decision through case law development, demonstrating how logical inconsistencies in application suggest judicial intervention is insufficient. Legislative definition of the agency defense with clear parameters would provide courts with necessary guidance.

Topics: Criminal Procedure

Keywords: agency defense · drug transactions · criminal sale · New York Penal Law · buyer's agent doctrine