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REALPE v. SCULLY

July 7, 1986

OSCAR REALPE, Petitioner,
v.
CHARLES SCULLY and ROBERT ABRAMS, Respondents



The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

 Petitioner, Oscar Realpe, is now serving two concurrent indeterminate sentences of from fifteen years to life, following his conviction, with other co-defendants, in the Supreme Court of the State of New York of the criminal sale of a controlled substance in the first degree *fn1" and criminal possession of a controlled substance in the first degree. *fn2" His judgment of conviction was unanimously affirmed upon appeal *fn3" and leave to appeal to the Court of Appeals was denied. *fn4"

 Petitioner seeks to void his judgment of conviction pursuant to 28 U.S.C. § 2254 upon two separate grounds: (1) that the trial court violated his federal right to due process of law by refusing to grant his requested jury instruction on agency in the purchase of narcotics, a defense available under New York law; and (2) that the prosecution impermissibly introduced evidence of another crime for which petitioner had been arrested and charged. It is not disputed that he has exhausted available state remedies.

 The court referred petitioner's application to Magistrate Leonard Bernikow for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate, in a comprehensive report which analyzed and considered petitioner's claims, the factual background as developed upon the trial and the applicable law, recommended that petitioner's application be denied. The petitioner, appearing pro se, has filed objections to the report and recommendation. The Court, upon a de novo study of the trial record, petitioner's state appellate and current briefs, consideration of his contentions and the applicable law, accepts the Magistrate's recommendations.

 Petitioner's first claim of denial of due process is based upon the doctrine of the New York State Court of Appeals that "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." *fn5" As otherwise stated by the Court:

 
In a prosecution for the sale of a controlled substance, a person who acts solely to accommodate the buyer acts as the alter ego of the recipient. Since the Penal Law does not impose criminal sanctions for the mere purchase of narcotics, the agent is held to the same degree of criminal liability as his principal from whom culpability is derived. Thus, where there is some reasonable view of the evidence which lends support to the claim that the defendant acted as an instrumentality of the buyer, upon a timely request, the court should instruct the jury on the agency defense. *fn6"

 Based on this agency defense concept under the New York law, *fn7" the petitioner contends that the evidence was sufficient to permit a reasonable finding by the jury that he procured and effected the delivery of the cocaine merely to accommodate a friend and that the Court's refusal to grant his request for an agency charge deprived him of his due process right to a fair trial.

 The minute details of events leading to the petitioner's arrest and conviction are fully set forth in the Magistrate's thorough report. In broad outline, Carlos Palacio, who had been arrested for possession of cocaine, agreed to cooperate with drug enforcement authorities upon promises that his efforts would be called to the attention of the appropriate authorities in his case. Sometime thereafter, about July 1980, Palacio was introduced by a friend to the petitioner who worked at the Rio Negro, a bar-restaurant in Queens, and met with him almost daily there and at other bars as drinking companions with their discussions centering in the main on females and double dating. After about a week of such social meetings, at the end of July or early August 1980, Palacio asked petitioner if he knew anybody who sold cocaine; that he had a friend who was interested in buying one-eighth of a kilogram of cocaine. Petitioner said he could supply any amount of cocaine Palacio's friend wanted.

 About September 18 or 19, 1980, petitioner called Palacio and said he had one-eighth of a kilogram of cocaine that would cost $8,000 and they arranged that the transaction be consummated on September 22 at the Rio Negro restaurant. Palacio, together with an undercover agent appeared at the appointed time and place, but petitioner did not. However, he called Palacio later that evening and after an apology for his non-appearance, a new appointment was arranged to close the transaction the next day, September 23, at a Holiday Inn in New York City.

 On September 23 at about 6:45 p.m., Detectives Johnson and Rodriguez of the Task Force went to the Holiday Inn bar to meet Palacio and petitioner. Rodriguez was to be the purchaser of the cocaine. Meanwhile, at about 7 p.m., Palacio met with petitioner at the Rio Negro restaurant where petitioner told Palacio he was waiting for a friend to bring the cocaine. Shortly thereafter, co-defendant Jose Viveros Bolivar appeared and was introduced by petitioner to Palacio.

 Bolivar asked Palacio whether he knew to whom they were going to sell the cocaine; Palacio told Bolivar that he had been doing business with the person for five years. After making a telephone call, Bolivar said they would have to go to 72nd Street and Northern Boulevard in Queens. Bolivar got his jacket from his car and then he, petitioner and Palacio drove in the latter's car to 72nd Street and Northern Boulevard where they met co-defendants Edilberto Brava and Zulma Barona, who were in a red Monte Carlo. Bolivar got into the Monte Carlo, which followed petitioner and Palacio to the Holiday Inn in Manhattan, where both cars double parked across the street from the Holiday Inn.

 Palacio entered the hotel alone and told Rodriguez, the undercover police officer, that the cocaine was in the red Monte Carlo. Palacio returned to his car and told petitioner that his friend was waiting inside for them. Palacio and petitioner walked over to the red Monte Carlo and the jacket Palacio had seen earlier that evening in Bolivar's possession was passed from Bolivar to Bravo, who handed it to his wife and who gave it to petitioner.

 Petitioner, together with Palacio, returned to the Holiday Inn where they met undercover officer Rodriguez at the bar. Rodriguez asked petitioner if he had the cocaine, who then motioned to the jacket he was holding and said the price would be $8,000. Rodriguez, Palacio and petitioner all proceeded to Palacio's car. Once inside the car, petitioner pulled a brown paper bag out of the jacket and gave the bag to Rodriguez which contained two separate clear plastic bags. Rodriguez field tested the contents of one of the plastic bags and decided it was cocaine but told petitioner it was not sufficiently pure and that $8,000 was too much for cocaine of that quality. *fn8" Thereupon, petitioner and Rodriguez negotiated the price and $7,900 was agreed upon. Rodriguez gave petitioner $7,900 in cash.

 Rodriguez indicated he was interested in purchasing several kilograms of cocaine, to which petitioner responded that his connection expected to receive three pounds in the near future. When Rodriguez asked for his telephone number, petitioner declined and said that Rodriguez should communicate with Palacio, who would get in touch ...


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