People v. Urich , 37 A.D.2d 901 ( 1971 )

Order unanimously reversed on the law and facts and indictment reinstated. Memorandum: The first count of the indictment accused defendant and another of criminally selling a dangerous drug in violation of section 220.35 of the Penal Law. The second count accused the same defendants of criminal possession of a dangerous drug in violation of section 220.10. County Court dismissed the indictment on the ground that the Grand Jury minutes contain no proof that defendant acted as agent for the seller (People v. Lindsey, 16 A D 2d 805, affd. 12 N Y 2d 958; People v. Harris, 28 A D 2d 1174). Testimony before the Grand Jury shows that defendant asked an undercover agent whether he wanted to buy some hash for $7 a gram, that the officer agreed to buy some for that price and that defendant took him to the codefendant’s apartment where he purchased two grams for $14. This proof establishes prima facie that defendant was acting as agent of the seller and not as a matter of law that he was acting as agent of the buyer. (People v. Hingerton, 26 N Y 2d 790; People v. Fisher, 35 A D 2d 886.) Furthermore, subdivision 5 of section 220.00 of the Penal Law provides: “ ‘ Sell ’ means to sell, exchange, give or dispose of to another, or to offer or agree to do the same.” Section'20.00 makes one criminally liable for the conduct of another “ when, acting with the mental culpability' required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.” We conclude that upon the proof before the Grand Jury and in view of these provisions it was error to dismiss the indictment. (Appeal from order of Herkimer County Court dismissing indictment.) Present — Del Yecchio, J. P., Marsh, Gabrielli, Moule and Henry, JJ.