AD2 order dated March 29, 2011, affirming judgment of conviction. Decision below: 82 AD3d 1276. Smith, J., granted leave December 6, 2011.

ISSUE PRESENTED: Whether the agency defense is available to a defendant charged with criminal facilitation in the fourth degree. (Assigned counsel: Steven Banks, Legal Aid Society, Criminal Appeals Bureau, 199 Water Street, NYC 10038.)

Issue before the Court: Whether "agency" is a defense not only to drug sale but also the A misdemeanor of criminal facilitation of the sale. (The defendant, in a bench trial, was acquitted of the sale via the agency defnese, but convicted of facilitation.)

Held:  Agency is not a defense to criminal facilitation.

CAL observes:  Whatever one might think of the majority's statutory analysis, this decision is likely to be only a minor footnote in the history of the war on drugs.  Prosecutors are unlikely to wish to add an A misdemeanor facilitation count to their third-degree drug sale indictments, precisely because they do not wish to give juries "somewhere to go" if they have doubts about the sale charge.  In any event, agency is not a defense to seventh-degree possession, which the defendant is typically guilty of even if he establishes the agency defense.