Herald Price Fahringer and Barbara Davies Eberl for appellant.

Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Gail N. Uebelhoer of counsel), for respondent.

Chief Judge COOKE and Judges GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

343*343JASEN, J.

We are asked to decide on this appeal whether a physician who unlawfully issues prescriptions knowing that they will be used for illicit trafficking in drugs can be found guilty of criminal "sale" of a controlled substance under article 220 of the Penal Law.

Defendant was a licensed physician who engaged in the general practice of medicine in Cazenovia, New York. Beginning in January, 1978 and continuing for an eight-month period, defendant embarked on a scheme with one Stephen Raia which eventually led to defendant's arrest and conviction. With names supplied primarily by Raia, 344*344 defendant would write prescriptions for various quantities of Demerol, quaalude, biphetamine and desoxyn. The names listed on the prescriptions were rarely those of any of defendant's patients, and, in one instance, the name of a deceased patient was used. Information as to the number of prescriptions needed and the drugs required apparently was provided by Raia's friend, Charles Sallin. The completed prescriptions were taken by Raia, Sallin and others to various local pharmacies to be filled. The drugs obtained were then sold by Sallin on the street or were used to "party" with by Sallin, Raia and others. For his efforts, defendant would receive half the money generated by the sale of the drugs or of the prescriptions themselves. On occasion, defendant would take back a portion of the contraband to support his own addiction to Demerol. In all, over 100 false prescriptions were issued by defendant in furtherance of this illicit scheme.

The continuous availability of the drugs quickly led to abuse, and, on August 2, 1978, Charles Sallin died from an overdose of Demerol. Apparently prompted by the death of his friend, Raia contacted the Syracuse Police Department and informed an officer in the narcotics division of defendant's activities. In exchange for being granted immunity from prosecution, Raia agreed to assist in the investigation and consented to having a transmitting device placed on his person.

On August 11, 1978, Raia went to defendant's home in Manlius, New York, with a list of five names supplied by the police. Raia recited the names to the defendant, who then filled out the blank prescription slips. After Raia left defendant's house, the five prescriptions immediately were turned over to the investigating officers. Later that day, Raia returned to defendant's house and gave defendant $345 which also had been supplied by the Syracuse police. Raia, apparently of his own volition, then had defendant write two additional prescriptions, one for quaaludes and the other for desoxyn. It was agreed that the desoxyn was to be for defendant's own use and the quaaludes for Raia's. These prescriptions also were seized by the investigating officer, but, for some unexplained reason, were later returned 345*345 to Raia. Raia had these prescriptions filled the next day, keeping the quaaludes for himself and returning the desoxyn to defendant.

Two weeks later, on August 24, 1978, this pattern of conduct was repeated, only this time at defendant's office in Cazenovia. Defendant wrote three prescriptions for quaaludes using names supplied by Raia. All three prescriptions were seized by the police as Raia left defendant's office. Later that day, Raia was given $450 which he turned over to defendant at his home in Manlius.

Five days later, on August 29, 1978, defendant was approached by Patrick Ryder and asked to write a prescription for quaaludes for Ryder's friend, John Gory. Defendant filled out the prescription in Gory's name and told Ryder he wanted "over $100" for it. Ryder met Gory that same day, and Gory paid $150 for the prescription. Gory then had the prescription filled and passed out the drugs to his friends. When Ryder returned to defendant's house, defendant kept $75 for himself and gave $75 back to Ryder. On September 11, 1978, defendant was arrested.

The Onondaga Grand Jury returned a 480-count indictment against the defendant, charging him with numerous violations of the Public Health Law and the Penal Law. Pursuant to CPL 300.40 (subd 6, par [b]), the Trial Judge submitted 37 representative counts to the jury. The court also denied defendant's motion to dismiss the four counts charging him with criminal sale of a controlled substance.

The jury found defendant guilty of nine counts of violating section 12-b of the Public Health Law, 10 counts of falsifying business records in the first degree (Penal Law, § 175.10), six counts of criminal facilitation in the first degree (Penal Law, § 115.08), one count of criminal possession of a controlled substance in the seventh degree (Penal Law, § 220.03), one count of unlawfully growing cannabis in violation of section 3382 of the Public Health Law, two counts of criminal sale of a controlled substance in the sixth degree (Penal Law, § 220.31), one count of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39), and one count of conspiracy in the 346*346 first degree for agreeing to sell certain controlled substances (Penal Law, § 105.17). Defendant thereafter was sentenced to a term of imprisonment of six years to life on the conviction of criminal sale of a controlled substance in the third degree. The sentences imposed on the remaining convictions were to run concurrently, except that the one-year sentences imposed for violating section 12-b of the Public Health Law were to run consecutively to the sentences for criminal possession of a controlled substance and unlawfully growing cannabis. The Appellate Division unanimously affirmed these convictions, and defendant was granted leave to appeal.

In this court, defendant asserts that his conviction for criminal sale of a controlled substance should be reversed. He argues that his conduct in merely writing illegal prescriptions does not constitute an unlawful sale of a controlled substance in violation of article 220 of the Penal Law. For the reasons that follow, the order of the Appellate Division should be modified so as to reverse defendant's convictions for criminal sale of a controlled substance.^[1]

We begin our analysis by reviewing the applicable statutes. Various sections of the Penal Law make it a crime to knowingly and unlawfully "sell" a controlled substance. (Penal Law, § 220.31 et seq.) The word "sell" is defined to mean "sell, exchange, give or dispose of to another, or to offer or agree to do the same." (Penal Law, § 220.00, subd 1.) "Unlawfully" is defined as "in violation of article thirty-three of the public health law." (Penal Law, § 220.00, subd 2.)

The Public Health Law also makes it unlawful for "any person to manufacture, sell, prescribe, distribute, dispense, administer, possess, have under his control, abandon, or transport a controlled substance except as expressly allowed by this article." (Public Health Law, § 3304 [emphasis 347*347 supplied].) The statute states that the word "`prescribe' means a direction or authorization, by prescription, permitting an ultimate user lawfully to obtain controlled substances from any person authorized by law to dispense such substances." (Public Health Law, § 3302, subd 29.) The word "sell" is defined in the same manner as under the Penal Law. (Public Health Law, § 3302, subd 32.) Various penalties are provided for violating the provisions of the Public Health Law relating to controlled substances. (E.g., Public Health Law, §§ 3345, 3380, subd 5; § 3382.) Violation of any provision for which no specific penalty is provided is punishable under section 12-b of the statute or under the Penal Law. Section 12-b of the Public Health Law makes any violator subject to a $2,000 fine, one-year imprisonment, or both.

Although under the Penal Law the term "sell" is expanded well beyond its ordinary meaning of parting with one's own property for consideration, it cannot be read so broadly as to encompass the act of prescribing drugs. The Legislature, by separately defining the terms "prescribe" and "sell" in the Public Health Law and cross-referencing that statute to the various sections of article 220 of the Penal Law, has made clear that the two words have a precise and distinct meaning. Indeed, in Matter of Tonis v Board of Regents (295 N.Y. 286), this court, in interpreting provisions nearly identical to those found in the current Penal Law and Public Health Law (see former Penal Law, § 1751; former Public Health Law, §§ 421, 423), held that a doctor who, while acting outside the course of his regular practice, issued two prescriptions to a known morphine addict did not unlawfully "sell" drugs even though the addict thereafter was able to obtain the morphine sulfate from a pharmacist. Nothing in the legislative history since our decision in Tonis (see Penal Law, art 220; L 1973, ch 276; L 1965, ch 1030) indicates that a different holding should obtain today. (Accord People v Shukla, 82 Misc 2d 912, affd on other grounds 58 AD2d 879, affd 44 N.Y.2d 756; cf. Matter of De Pasquale v Board of Regents of Univ. of State of N. Y., 7 AD2d 692.)

Nor does the People's reliance on the rule issued by the 348*348 Commissioner of Health serve to alter this result. (See 10 NYCRR 80.65.) That rule, promulgated by the commissioner pursuant to subdivision 2 of section 3308 of the Public Health Law, merely provides that a prescription issued to an addict or habitual user not in the course of professional treatment for the purpose of maintaining his or her habit "is not a prescription within the meaning of subdivision 30 of section 3302 of the Public Health Law." This rule, assuming its applicability to the facts of this case, does nothing in terms of clarifying or reformulating the definition of the word "sell" under the Penal Law.^[2]

In short, under article 220 of the Penal Law, to "prescribe" is not to "sell". Although to most, a physician who flagrantly disregards his sworn professional obligation and abuses the public's trust by allowing large quantities of dangerous drugs to enter illicit channels is no less a "pusher" than the layperson on the street who does not have the benefit of a license and medical degree, under the present statutory framework, merely writing a false prescription, even with the knowledge that it is to be used for illegal purposes, does not constitute the criminal "sale" of a controlled substance. Any further criminal sanctions for this type of conduct must come from the Legislature.^[3]

349*349This is not to say that a physician who knowingly issues an illegal prescription can never be convicted of criminal sale of a controlled substance. Indeed, such conduct could render the physician liable as an accomplice for the subsequent sale of the drugs by another person provided it is established that the doctor (1) intentionally aided the other in the commission of the crime; and (2) acted with the mental culpability required for criminal sale of a controlled substance. (Penal Law, § 20.00.) Writing a prescription with the knowledge that it is to be used for an illicit purpose would satisfy the requirement that the physician intentionally assisted in the commission of the crime. However, it must also be shown that, by issuing the prescription, the physician had a specific interest in having the actual drugs sold to some third party. Absent such a specific intent, a physician cannot be held liable as an accomplice to a criminal sale under section 20.00 of the Penal Law even though he intentionally and unlawfully aids another person in obtaining the controlled substance. Stated another way, issuing or selling an illegal prescription with an indifference towards whether the person who obtains the drugs from the pharmacy subsequently sells them to others is an insufficient basis for imposing liability upon a physician under article 220 of the Penal Law.

In this case, the jury was instructed that, for purposes of the counts charging criminal sale of a controlled substance, if they found that defendant was an accomplice of Raia, Sallin and Ryder, then the acts of those individuals would be chargeable to the defendant. Nevertheless, a review of the record reveals that there is insufficient proof to sustain defendant's three convictions for criminal sale of a controlled substance.

For his activities on August 11, 1978, defendant was found guilty of selling 2.4 grams of biphetamine and desoxyn.^[4] However, all of the first five prescriptions issued by defendant on that day, including the two prescriptions for desoxyn and biphetamine, were confiscated by the police as 350*350 Raia left defendant's house. Although there was evidence that defendant intended that Raia was to sell the drugs to others, the prescriptions were never filled and no drugs were ever obtained. Thus, no sale was ever consummated. As to the remaining prescription for desoxyn issued on August 11, although that prescription was filled, it was written by defendant, albeit in another person's name, for his own benefit and the drugs obtained were, in fact, consumed by him. As such, this conduct constituted merely a purchase of drugs by defendant through the means of a false prescription. In so acting, defendant assumed the role of a buyer and, therefore, he cannot be convicted of a criminal sale. (See People v Lam Lek Chong, 45 N.Y.2d 64, 73; People v Pasquarello, 306 N.Y. 759.)

Turning to the conviction arising out of the events of August 24, 1978, a similar result obtains. Defendant was found guilty of selling quaaludes on that date. Once again, however, the three prescriptions issued by defendant were taken from Raia by the police before any drugs could be purchased, thereby preventing any subsequent sale from ever taking place.

Finally, as to the events of August 30, 1978, there was also a failure of proof that defendant sold guaaludes. Defendant's conduct on that date merely consisted of writing, at Ryder's behest, a prescription which was sold to Gory. Although Gory actually obtained the drugs and passed them out to his friends, there was no evidence that defendant, when he issued the prescription, had any knowledge of or interest in that sale taking place. In fact, Ryder testified that he only told defendant that the prescription was for Gory. Defendant, therefore, cannot be held liable as an accomplice to the subsequent sale of the quaaludes by Gory to his friends.

In order to dispel any possible doubts, it should be emphasized that, although not liable as a seller of drugs, a physician who engages in such activities as those undertaken by the defendant in this case is by no means immune from prosecution. In addition to violating numerous provisions of the Public Health Law for which fines and imprisonment 351*351 may be imposed, a physician who issues prescriptions knowing that they will be used for illicit trafficking in drugs also can be convicted under the Penal Law for the crimes of criminal solicitation, conspiracy and criminal facilitation, to name but a few. As noted earlier, the record of convictions in this case is a testament to that fact.

Defendant's remaining contentions merit only a brief discussion. Defendant asserts that the trial court erred by failing to charge that Raia, Ryder and another witness, Jane Otto, were accomplices as a matter of law. Although it was agreed in a conference among the trial court, defense counsel and the prosecuting attorney that said witnesses were accomplices as a matter of law, the court charged that their status was to be determined as a question of fact. This was error. However, by not requesting that the jury be instructed that these individuals were accomplices as a matter of law and then failing to object to the charge as given, defendant has not preserved this issue for appellate review. (See CPL 470.05, subd 2.) As noted by the court below, "had a proper exception been taken, or had a request been made, the court, in light of its prior agreement, would have given the appropriate charge. Moreover, at the end of the charge when the trial court had failed to so charge and at a time when the failure could readily have been corrected, counsel did not except or object to the charge as given. Such inaction under the circumstances may not serve to preserve this issue for review." (78 AD2d 999; cf. People v Le Mieux, 51 N.Y.2d 981.) Similarly, by not objecting to the jury charge on the ground that the Trial Judge had shifted the burden of proof on the question of his criminal intent (see Sandstrom v Montana, 442 US 510), defendant failed to preserve this issue for review (People v Thomas, 50 N.Y.2d 467.)

Accordingly, the order of the Appellate Division should be modified so as to reverse defendant's convictions for criminal sale of a controlled substance in the third and sixth degrees, the sentences entered there on should be vacated, and those counts of the indictment should be dismissed. As so modified, the order should be affirmed.

Order modified in accordance with the opinion herein and, as so modified, affirmed.

[1] Defendant also asserts that his conduct in writing the illegal prescriptions is "too far removed" from the unlawful sale of any drugs to render him guilty of conspiracy to sell drugs. This contention is without merit. There is sufficient evidence in the record to support the jury's verdict that defendant agreed to commit the crime of criminal sale of a controlled substance in the third degree. There is, therefore, no reason to disturb defendant's conviction of conspiracy in the first degree.

[2] Reliance by the People on such cases as United States v Roya (574 F.2d 386, cert den 439 US 857) and United States v Boettjer (569 F.2d 1078, cert den 435 US 976) also is misplaced. These cases were decided under the Federal controlled substances act (US Code, tit 21, § 801 et seq.). That statute makes it unlawful to "dispense" a controlled substance (US Code, tit 21, § 841, subd [a], par [1]), and the term "dispense" is expressly defined to include the act of "prescribing" a controlled substance (US Code, tit 21, § 802, subd [10]; see Jin Fuey Moy v United States, 254 US 189). As such, these Federal cases offer no guidance in the interpretation of the word "sell" under the New York Penal Law.

[3] The Legislature has acted to prohibit one type of abuse in the prescribing of drugs. Section 3304 of the Public Health Law recently has been amended to make it unlawful for "any physician * * * to prescribe, dispense or administer any amphetamines or sympathomimetic amine drug or compound thereof * * * for the exclusive treatment of obesity, weight control or weight loss." (L 1981, ch 795, eff Sept. 1, 1981.) The amendment expressly provides that its violation "shall not be grounds for prosecution under article two hundred twenty of the penal law." By subjecting "unscrupulous physicians who continue to prescribe amphetamines indiscriminately" to disciplinary proceedings before the Board of Health, the new law seeks to prevent the widespread abuse of that particular drug. (Executive Memoranda, McKinney's Session Laws of NY, 1981, Pamphlet No. 6, p A-485.)

[4] The indictment originally charged defendant with selling 3 grams of the stimulant. However, pursuant to consent by the parties, this count was amended to charge the sale of only 2.4 grams.

Roger L. Stavis, Steven R. Kartagener and Stanley N. Lupkin for appellant.

Robert M. Morgenthau, District Attorney (Carol A. Remer-Smith and Norman Barclay of counsel), for respondent.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, HANCOCK, JR., and BELLACOSA concur.

142*142TITONE, J.

Defendant Murray Kaplan was convicted of first degree criminal sale of a controlled substance (Penal Law § 220.43) because of his involvement in a narcotics network which operated out of a garment business office located in the Empire State Building. His primary contention on appeal is that although the culpable state required for the commission of this crime is "knowledge," the trial court should have instructed the jury that defendant could not be held liable as an accomplice unless he acted with the specific intent to sell a controlled substance. We conclude that such an instruction is not required and that, accordingly, the conviction should be affirmed.

From May 1, 1986 to February 17, 1987, the police investigated 143*143 a cocaine ring which apparently operated out of an office maintained by defendant's cousin, Mike Kaplan, in the Empire State Building. Detective Janis Grasso, posing as a drug courier for someone named "Ronnie" from Atlantic City, engaged in a series of transactions, primarily with Mike Kaplan. The charges against defendant were based on his actions on October 15, 1986, when, pursuant to a prior phone call, Grasso went to Kaplan's office to purchase 10 ounces of cocaine and found Kaplan, Kaplan's brother and defendant present. After introducing Grasso to the other two men, Mike Kaplan told defendant "to take care of the young lady." Defendant got off the couch, walked to a file cabinet in the room, removed a manila envelope from it, and placed it on the desk in front of Grasso. She in turn took out $15,000 in prerecorded buy money and placed it on the table. Defendant picked up the money, took it over to the table and began counting it. At the same time, Grasso opened the manila envelope, took out a zip-lock plastic bag, and placed the drugs into her purse remarking that "it looks nice."

Defendant was subsequently charged with, inter alia, criminal sale of a controlled substance.^[1] Before the case was submitted to the jury, defense counsel asked the court to instruct the jurors that in order to convict defendant as an accomplice they must find that he had "specific intent" to sell a controlled substance, and that he had to "share the intent or purpose of the principal actors." The court denied defendant's request, noting that the mental culpability required for criminal sale was not "intent" but "knowledge" and, further, that the standard charge for accomplice liability requires proof that the defendant "intentionally aided" the other participants. Following the court's charge, which tracked the language of the applicable statutes, the jury found defendant guilty of criminal sale.^[2] The Appellate Division, First Department, 144*144 affirmed defendant's conviction, without opinion, and leave to appeal was granted by a Judge of this court.

Penal Law § 20.00 provides that a person may be held criminally liable as an accomplice when he performs certain acts and does so "with the mental culpability required for the commission" of the substantive crime. Despite this language, defendant argues, based on case law predating the present Penal Law, that even though the substantive crime with which he was charged — criminal sale of a controlled substance — requires only knowledge,^[3] the statute should be construed to require proof of a more exacting mens rea, namely specific intent to sell.

Under section 2 of the former Penal Law, a person could be convicted as a principal if he "aid[ed] and abett[ed] in [the] commission [of a crime]". The former Penal Law, however, did not specifically state what type of acts were required for conviction (see, Denzer & McQuillan, Practice Commentary, McKinney's Cons Law of NY, Book 39, Penal Law art 20, at 32 [1967]; 7 Zett, New York Criminal Practice ¶ 62.1 [2]). Consequently, in order to prevent the imposition of criminal liability for the principal's crime on someone who may have been merely present, the courts required proof that the aider or abetter "`share[d] the intent or purpose of the principal actor'" (People v La Belle, 18 N.Y.2d 405, 412, quoting 1 Burdick, Crimes § 221, at 297; see, People v Morhouse, 21 N.Y.2d 66, 73-74 [accomplice had knowledge of and shared guilty purposes of principle]; People v Fasano, 11 N.Y.2d 436, 443 [accomplice must be "engaged in a common purpose or design"]; see also, Comment, Jury Instructions in Aiding and Abetting Cases, 68 Colum L Rev 774, 777-780).

Defendant's argument is that this "shared intent or purpose" test required proof, in his case, that he acted with the specific intent to sell cocaine. However, any lack of clarity that previously existed under section 2 of the former Penal Law was eliminated by the adoption of section 20.00 of the revised Penal Law, which specifies that an accomplice must have acted with the "mental culpability required for the 145*145 commission" of the particular crime. Further, we have already construed section 20.00 as not requiring specific intent within the meaning of Penal Law § 15.05 (1) when the substantive crime does not involve such intent (see, People v Flayhart, 72 N.Y.2d 737, 741). Finally, the "shared intent or purpose" language from our earlier cases, which appears occasionally even in cases arising under the modern statute (see, e.g., People v Allah, 71 N.Y.2d 830, 831 ["community of purpose"]; People v Cummings, 131 AD2d 865; People v McLean, 107 AD2d 167, 169, affd 65 N.Y.2d 758), cannot be read for the proposition, advanced by defendant, that a specific wish to commit the principal's substantive crime is required in all circumstances, including those involving substantive crimes with mental states other than that defined in Penal Law § 15.05 (1). Indeed, the "shared intent or purpose" test set forth in the case law merely establishes that acts undertaken in relative innocence and without a conscious design to advance the principal's crime will not support a conviction for accomplice liability. The same conclusion, however, is implicit in the specific requirement in Penal Law § 20.00 that the accomplice "solicit[ ], request[ ], command[ ], importune[ ], or intentionally aid[ ]" (emphasis added) the principal, since all of the delineated acts import goal-directed conduct (see, 7 Zett, New York Criminal Practice ¶ 62.1 [2]).

The distinction made here is a subtle, but important, one. It is well illustrated by our holding in People v Flayhart (supra), in which we concluded that the defendants could be guilty as accomplices to the crime of criminally negligent homicide under Penal Law § 125.10, even though neither defendant had the victim's death as a "conscious object" (see, Penal Law § 15.05 [1]). This result flowed naturally from the fact that both defendants could be found to have "fail[ed] to perceive a substantial and unjustifiable risk" of death — the "mental culpability required for the crime" (Penal Law § 20.00 ["acting with the mental culpability required for the commission thereof"]) — and that both engaged in deliberate conduct to advance the common enterprise, i.e., the egregious neglect of the victim.

Similarly, in People v Lipton (54 N.Y.2d 340), this court upheld various counts of a physician's conviction arising out of a scheme in which the defendant wrote prescriptions for controlled substances that were subsequently either used by himself and his codefendants or sold to others by one of his codefendants (id., at 344). The court's statement in dictum 146*146 that the physician could not have been liable as an accomplice to an illegal sale absent a "specific interest in having the actual drugs sold to some third party" or some other form of "specific intent" (id., at 349), was an apparent reference to the "intentionally aiding" requirement of Penal Law § 20.00, as distinguished from the statutory mens rea requirement that the accomplice act with the level of mental culpability required for the principal's crime.

For the same reasons, we reject defendant's alternative argument that the crime of which he was convicted under the court's charge is indistinguishable from second degree criminal facilitation, a class C felony (Penal Law § 115.05). A person is guilty of second degree criminal facilitation when "believing it probable that he is rendering aid to a person who intends to commit a class A felony, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit such class A felony" (Penal Law § 115.05 [emphasis supplied]). This statute was enacted to provide an additional tool in the prosecutorial arsenal for situations where the "facilitator" knowingly aided the commission of a crime but did not possess the mental culpability required for commission of the substantive crime (see, Donnino, Practice Commentaries, McKinney's Cons Law of NY, Book 39, Penal Law art 115, at 432-433; see generally, People v Beaudet, 32 N.Y.2d 371, 377; People v Gordon, 32 N.Y.2d 62, 65; Staff Notes of Commission on Revision of Penal Law and Criminal Code, Proposed New York Penal Law, McKinney's Spec Pamph, at 328 [1964]). Additionally an "accomplice" and a "facilitator" are distinguishable in that the accomplice must have intentionally aided the principal in bringing forth a result, while the facilitator need only have provided assistance "believing it probable" that he was rendering aid.

In defendant's case there was sufficient evidence for the jury to find that, knowing the substance in question was cocaine, defendant intentionally aided Mike Kaplan by delivering it to Detective Grasso (see, People v Dordal, 55 N.Y.2d 954; People v Payne, 135 AD2d 746; People v Serra, 104 AD2d 66; People v Bray, 99 AD2d 470). The evidence established that after being asked by Mike Kaplan to "take care of" Detective Grasso, defendant immediately went to a file cabinet drawer, retrieved a package containing cocaine, and gave the package to Grasso in exchange for money which defendant immediately began to count. That defendant neither negotiated nor arranged the 147*147 transactions does not affect his liability as an accomplice, and the court was not required to include specific intent to sell as an element in its charge on accessorial liability. The elements were adequately conveyed when the court told the jury that it must find both that defendant acted with the specific intent required for the substantive offense, i.e., knowledge that the substance was cocaine, and that he "intentionally aided" the sale.

We have considered defendant's remaining contentions and they are either unpreserved or without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

[1] The additional charges were (1) a conspiracy count, which was severed; (2) sale and possession counts arising out of an alleged August 26, 1986 incident, which were dismissed before trial; (3) a possession count arising out of the October 15, 1986 incident, which was dismissed on the prosecutor's motion and (4) sale and possession counts involving an incident occurring on August 5, 1986, as to which the jurors in the present action were unable to agree.

[2] Along with defendant, Mike Kaplan, and six others were also indicted and charged with conspiracy, sale, and possession of narcotics as a result of the investigation. All of these defendants have either been convicted, or have pleaded guilty, to some or all of the counts against them.

[3] Penal Law § 220.43 provides, in pertinent part, that "[a] person is guilty of criminal sale of a controlled substance in the first degree when he knowingly and unlawfully sells" (emphasis supplied). A person acts knowingly "when he is aware that his conduct is of such nature or that such circumstance exists" (Penal Law § 15.05 [2]). In contrast, a person acts intentionally "when his conscious objective is to cause such result or to engage in such conduct" (Penal Law § 15.05 [1]).

All concur, except Boomer, J., who dissents in part and votes to reverse and reinstate the indictment in the following memorandum.

Present — Callahan, J. P., Boomer, Balio and Lawton, JJ.

Order modified, on the law, and as modified, affirmed, in accordance with the following memorandum:

The People appeal from the dismissal of an indictment charging the defendant with criminal facilitation in the second degree and as an accessory to felony murder, attempted robbery, criminal possession of a weapon and criminal use of a firearm.

Viewing the evidence in a light most favorable to the People (People v Lancaster, 114 AD2d 92, 95), the record before the Grand Jury reveals that defendant, knowing that her husband and two of his friends were planning to rob someone of cocaine, cut her stockings for use as masks and gave gloves to her husband. The next evening the masks and gloves were used in a robbery attempt, and a young woman was shot and killed. Competent evidence was presented constituting prima facie proof that defendant, believing it probable that other persons intended to commit a crime, engaged in conduct which provided a means to commit a crime and which in fact aided the principal actors to commit a felony. Since this evidence constitutes prima facie proof of every element of criminal facilitation in the second degree, or a lesser included offense, the court erred by dismissing the criminal facilitation count (CPL 70.10 [1]; 190.65 [1]; People v Deitsch, 97 AD2d 327, 329).

The court's dismissal of the remaining counts predicated upon defendant's accessorial conduct was proper. Although she knowingly provided a means for the commission of a robbery, there is no proof that she shared the intent of the principal actors in the sense that she, herself, intended to commit the robbery or related crimes, or that she was to profit therefrom or had any interest in their success or failure (see, Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 20.00, p 44). Under these circumstances, the defendant cannot be criminally liable as an accessory (Penal Law § 20.00; see also, People v Bray, 99 AD2d 470; People v Thomas, 66 AD2d 1001; 31 NY Jur 2d, Criminal Law §§ 177, 178).

Accordingly, the order is modified by denying the motion to dismiss the criminal facilitation count of the indictment and the indictment is, to that extent, reinstated.

556*556Boomer, J. (dissenting).

I disagree with the majority that "there is no proof that [defendant] shared the intent of the principal actors". Since intent is the operation of a person's mind, it can rarely be proved by direct evidence. Intent may be inferred, however, from the acts and conduct of the defendant before the crime. Here, knowing that her husband and two of his friends were planning an armed robbery, defendant willingly aided them in the commission of the robbery by providing them with masks and gloves.

Contrary to the statement of the majority, there is no requirement that an accessory, herself, intend to commit the crime or profit therefrom. Accessorial liability requires only that the defendant knowingly aid another in the commission of the crime with the intent that the crime be committed. A showing of benefit or stake in the outcome strengthens the inference that the aider intended that the crime be committed, but such a showing is not necessary to prove intent. Moreover, it could be inferred that defendant expected to benefit from her husband's share of the proceeds of the crime.

The evidence before the Grand Jury need not prove defendant's guilt beyond a reasonable doubt, but need only establish a prima facie case. The evidence before the Grand Jury was sufficient to prove a prima facie case of accessorial liability based upon the inference of intent drawn from defendant's acts in light of the knowledge she had of the planned crime (see, People v Beaudet, 32 N.Y.2d 371, 375; see also, Matter of Anthony M., 63 N.Y.2d 270, 282).

Accordingly, the order should be reversed and the indictment reinstated.

Robert M. Morgenthau, District Attorney (Julie Freudenheim and Norman Barclay of counsel), for appellant.

Ira Mickenburg for respondent.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.

867*867MEMORANDUM.

The order of the Appellate Division should be affirmed.

On an April afternoon, police officers entered an apartment building on West 108th Street in Manhattan to execute a search warrant at apartment 14 located on the fourth floor. The People's sole witness testified that as the officers ascended the stairs from the third to the fourth floor, they saw defendant on the fourth floor landing "peering" over the banister. Upon seeing them defendant yelled "Police, Police," and knocked on the door of apartment 14. The officers arrested defendant immediately. After entering the apartment through the unlocked door, the officers recovered a large quantity of cocaine, 256 vials of "crack," a gun, and assorted drug paraphernalia. Five men in the apartment were arrested, and 868*868 charged, inter alia, with criminal possession of a controlled substance.

Defendant was subsequently convicted, by bench trial, of criminal facilitation in the fourth degree (Penal Law § 115.00 [1]). The Appellate Division unanimously reversed, concluding that the People failed to establish "any one of [the] elements [of criminal facilitation] as a matter of law," that an analysis of the elements of the crime and of the cases interpretive thereof leads to the conclusion that the "statute contemplates that the facilitated crime must occur in the future, after the intervention of the facilitator." (151 AD2d 128, 130.) The case is before us upon the People's appeal pursuant to leave granted by a Judge of this Court. We now affirm, but on narrower grounds.

Penal Law § 115.00 (1) provides in pertinent part, "[a] person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid * * * to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony". Essential to establishing the commission of this crime is that the facilitator render aid that provides the means or opportunity to commit the crime and does in fact aid a person in committing a felony (Penal Law § 115.00 [1]).

Here, there is no evidence that defendant's conduct enabled the occupants of apartment 14 to possess the contraband for any period longer than they would have had defendant done nothing. Thus, it cannot be said that defendant provided the "means or opportunity" for commission of the object felony (see, People v Puig, 85 Misc 2d 228; People v Volante, 75 Misc 2d 400; People v Jennings, 98 Misc 2d 1015; see generally, 31 NY Jur 2d, Criminal Law, §§ 370-378). Nor did she in fact aid the occupants of apartment 14 in the commission of the crime of criminal possession of a controlled substance (see, People v Arcadi, 79 AD2d 845, affd 54 N.Y.2d 981; cf., People v Streeter, 139 AD2d 786 [defendant's receiving currency which initiated drug transaction facilitated crime]; People v Schoen, 136 Misc 2d 851, 853 [defendant's transporting "buy" money completed drug transaction providing drug traffickers with a means or opportunity to sell narcotics]; see also, Frohlich & Newell Foods v New Sans Souci Nursing Home, 109 Misc 2d 974 [supplying false bills to nursing home operators knowing that bills would be used to obtain reimbursement from the State was tantamount to crime of criminal facilitation]).

Order affirmed in a memorandum.

Steven Chananie, Ronald Goldstock and Carol Antonacci for appellant in the first above-entitled action.

James Kousouros and Debra Kay Kousouros for respondent in the first above-entitled action.

Steven Chananie and Ronald Goldstock for appellant in the second above-entitled action.

John A. Cirando, Patrick J. Haber and Ivette C. Iza for respondent in the second above-entitled action.

Chief Judge WACHTLER and Judges KAYE, TITONE, HANCOCK, JR., and BELLACOSA concur; Judge SIMONS taking no part.

565*565ALEXANDER, J.

In these cases, we consider the extent to which the principles of accessorial liability and constructive possession may support a finding that evidence presented to a Grand Jury is legally sufficient to establish a prima facie case of criminal possession of a controlled substance. In both cases the trial court's dismissal of counts of the indictments charging criminal possession of a controlled substance were affirmed by the Appellate Division. The People were granted leave to appeal in each case by a Judge of this Court. The legal principles we apply are the same in both cases, but the significantly different factual scenarios require an affirmance in People v Manini and a reversal in People v Fuente.

The indictments in both cases resulted from investigations of the New York State Organized Crime Task Force (OCTF) into the importation of drugs into New York. In Manini, the investigation began in December 1987, and focused on drug trafficking in Onondaga and Cayuga Counties. In the course of its investigation, the OCTF discovered that Manini, an unindicted co-conspirator, Sanford Paige, and codefendant Vincent DeTomaso, along with several other parties, were involved in the importation into and distribution of drugs within New York. Operating out of California, Manini provided Paige and DeTomaso with cocaine on two separate occasions: in April of 1988 he flew to Buffalo from California with one kilogram of cocaine and sold it to Paige; in late June of 1988, Paige obtained nine ounces of cocaine from defendant "on credit" in California. Thereafter, on June 29, 1988, Paige flew from California to Rochester, New York, carrying almost four ounces of cocaine.^[1] He was met at the Rochester Airport by DeTomaso. They left the airport together and were both arrested and the cocaine seized. A 38-count indictment resulted; 566*566 six of the charges related to Manini, including criminal possession in the second and third degrees for the possession by Paige of the almost four ounces of cocaine on June 29, 1988.^[2]

Defendant's motion to dismiss the indictment on the ground that the evidence presented to the Grand Jury was legally insufficient was granted by the trial court to the extent of dismissing counts 37 and 38, which related to the possession of the cocaine seized from Paige on June 29, 1988 in New York. The Appellate Division affirmed. The courts below held that the evidence presented to the Grand Jury was legally insufficient to establish Manini's liability for criminal possession of the cocaine physically possessed by Paige in New York on June 29, 1988 under either a theory of accessorial liability or constructive possession.

In People v Fuente, the investigation leading to defendant's arrest and indictment began in the summer of 1988, and focused on cocaine trafficking by various individuals in the Monroe County area. Between November 12, 1988 and November 19, 1988, utilizing court-authorized electronic surveillance, the police intercepted calls to Fuente's telephone in Rochester. During various intercepted conversations relating to arrangements for the purchase of cocaine between Fuente, his girlfriend and a person who later testified before the Grand Jury, the police learned that Fuente was planning a trip to obtain cocaine for resale to his customers. On November 15, 1988, codefendant Disnardo Carballo was observed arriving at Fuente's apartment complex in a blue Dodge van registered to the mother of Carballo's girlfriend, codefendant Luz Martinez. About one hour later, Carballo left with another male, presumed to have been Fuente, and the two drove in the van to the home of Martinez's mother in Rochester. Minutes after the van left the apartment complex, the person who later testified before the Grand Jury called Fuente's apartment and was told by his girlfriend that he had gone to obtain cocaine, and would return later in the week. The witness testified that she understood that Fuente had gone to Florida to obtain cocaine. Over the next few days, surveillance attempts to locate the van were unsuccessful.

567*567Finally, on November 19, 1988 the police observed the same blue van driven by Carballo earlier in the week pulling into the driveway at the home of Martinez's mother; Carballo was driving and Luz Martinez was in the front passenger seat. About 30 seconds later Fuente, driving his own car, also pulled into the driveway. Both vehicles pulled into a parking area behind the house and remained there for about 10 minutes. The police then observed the vehicles pull out of the driveway and head down the street. When the van turned the corner and pulled into another driveway the police blocked the driveway with two police vehicles, and searched the van pursuant to a search warrant. Approximately one kilogram of cocaine was seized from the van, and Carballo and Martinez were arrested. The cocaine was packaged in four separate packages, each marked with a name. Other items found in the van, including a recent newspaper and a merchandise receipt, indicated that the occupants had been in Florida as recently as November 17, 1988. Fuente was stopped at a different location nearby and also arrested.

On April 14, 1989, Fuente, Carballo and Martinez were indicted for conspiracy in the second degree and criminal possession of a controlled substance in the first and third degrees. Fuente's motion to dismiss the indictment for legal insufficiency of the evidence before the Grand Jury was granted by the trial court to the extent of dismissing the two possession counts. Although the People argued that the evidence was sufficient under the principles of either accessorial liability or constructive possession, the Appellate Division affirmed, stating only that "[t]he evidence before the Grand Jury was insufficient to establish defendant's constructive possession of the contraband." (170 AD2d 986.)

On this appeal the People contend in both cases that the evidence presented to the Grand Jury was legally sufficient to establish, prima facie, each defendant's liability for possession of drugs found in the actual possession of another under the theories of accessorial liability and/or constructive possession. They argue that each defendant should be liable for criminal possession of a controlled substance even though neither was in actual possession of the drugs upon which the dismissed counts were based.^[3] They contend that the fact that narcotics 568*568 suppliers and middle- and high-level drug dealers use others to actually transport and distribute the narcotics should not shield them from liability for possession of drugs by those others when they themselves caused or directed the possession. In Manini, the People point out that out-of-State suppliers of narcotics who provide drugs for distribution within New York often retain a "continuing possessory interest" in the drugs until they are sold; that if the out-of-State supplier's possessory interest extends into New York, there is no reason why the supplier should not be held liable by reason of that possessory interest either as an accessory or under the principles of constructive possession. In Fuente, the People contend that sophisticated, higher-level drug dealers often attempt to insulate themselves from potential criminal liability by having others handle drugs being bought and sold. They argue that these dealers should be held criminally liable, as accessories or under the principles of constructive possession, for their direct involvement in the possession of drugs by associates or others employed to assist them in their drug distribution business. Thus, they contend that in each case the evidence submitted to the Grand Jury was legally sufficient to support the indictments and that in each case there should be a reversal.

We begin our discussion by noting that under settled law "legally sufficient evidence" means competent evidence which, if accepted as true, would establish every element of the crime charged and the defendant's commission of it (CPL 70.10 [1]; People v Haney, 30 N.Y.2d 328, 335-336). The test of legal sufficiency in this context is whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a 569*569 trial jury (People v Jennings, 69 N.Y.2d 103, 114-115; People v Pelchat, 62 N.Y.2d 97, 105). With this definition and test in mind, we address each of the People's liability theories in turn.

A. Accessorial Liability

Under section 20.00 of the Penal Law, a defendant is accessorially liable for a criminal offense committed by another when he "solicits, requests, commands, importunes, or intentionally aids" another to engage in the offense, and when the defendant does so "with the mental culpability required for the commission" of the offense (Penal Law § 20.00; People v Flayhart, 72 N.Y.2d 737, 741). The People argue that inasmuch as defendant Manini "intentionally aided" Paige to commit the offense of criminal possession of a controlled substance when he sold him the drugs "on credit", and defendant Fuente "aided and abetted" his codefendants Carballo and Martinez in their possession of a controlled substance because they procured the drugs under his direction and on his behalf, the courts below erred in dismissing the possession counts against these defendants.

Penal Law § 20.10 provides, however, that a person is not criminally liable for an offense committed by another "when his own conduct, though causing or aiding the commission of such offense, is of a kind that is necessarily incidental [to the commission of the offense]" (see, Penal Law § 20.10). If the conduct of the person sought to be held liable as an accomplice constitutes a related but separate offense, that person is liable only for his/her own offense, and not for the offense committed by the principal (see, Penal Law § 20.10). Thus, if a person's conduct is of a kind that is "necessarily incidental" to the commission of the other person's offense that person is exempt from accomplice liability, and is criminally liable only for his or her own conduct if it constitutes a related but separate offense.

The People contend, however, that Penal Law § 20.10 does not prohibit assessing accessorial liability against Manini and Fuente for possession of cocaine by others because their conduct was not "necessarily incidental" to that possession within the meaning of the statute. They argue that the plain language of the statute and its legislative history indicate that the prohibition against accomplice liability is only applicable if the definition and nature of the principal's crime is such 570*570 that, in all circumstances, not just in those presented in the particular case, the crime could not have been committed without the participation of the accessory (cf., People v Glover, 57 N.Y.2d 61). The People point out that a person may possess drugs without there ever being a seller, i.e., where the drugs were stolen or found, or even grown or manufactured directly by the possessor. Since the offense of criminal possession of a controlled substance does not contemplate or require, in all circumstances, the participation of another, the argument goes, defendants' conduct in either "intentionally aiding" (Manini) or "aiding or abetting" (Fuente) another to possess drugs is not "of a kind" that is "necessarily incidental" thereto, and thus section 20.10 is not applicable.

We do not believe, however, that the statute should be so narrowly interpreted. We find nothing in the history of Penal Law § 20.10 to support the conclusion that the Legislature intended the exemption to be construed such that one who sells drugs to another thereby becomes an accomplice to the other's resulting possession. Interpreting the statute in the manner advocated by the People would broaden the reach of accessorial prosecutions such as this to an extent and in a way not clearly intended by the Legislature.

In the interpretation of a statute "[t]he legislative intent is the great and controlling principle" (see, People v Ryan, 274 N.Y. 149, 152; McKinney's Cons Laws of NY, Book 1, Statutes § 96, at 202). Notwithstanding the People's contrary argument, it does not clearly appear that the Legislature meant to limit section 20.10 in its application so as to exclude situations such as those presented in these two cases. The underlying purpose of the statute appears to have been to prevent unnecessary prosecutions in cases where "ordinarily each culprit in such a reciprocal situation [would be] prosecuted for his particular offense" such that there would be "no need for torturing [the putative accessory's] conduct into accessorial guilt of the correlative offense" (Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 20.10, at 57 [1975]).

Under the former Penal Law, "a fairly logical if strained" argument could be made that a person guilty of bribe giving was also guilty of bribe receiving (see, Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 20.10, at 57 [1975]; see also, Staff Notes of Temp State Commn on Revision of Penal Law and Criminal Code, reprinted in Proposed NY Penal Law [Study Bill, 1964 Senate 571*571 Int 3918, Assembly Int 5376], at 315 [1964]).^[4] Although a literal reading of section 20.00 might support the same contention, section 20.10 would in fact preclude prosecution of the bribe giver for the crime of bribe receiving (Hechtman, op. cit.; Staff Notes of Temp State Commn, op. cit.).

While, as the People point out, there may be situations in which a person may come into possession of illegal drugs by finding, stealing or manufacturing them, it is far more likely that the purchaser's possession resulted from a sale.^[5] Thus, in the vast majority of cases, a "sale" is "necessarily incidental" to the possession of narcotics. In the typical drug transaction scenario, the seller will continue to be liable for his own actual possession and sale, and in some cases for conspiracy to commit narcotics offenses.

Viewed in this light, it seems unlikely that in enacting section 20.10, the Legislature intended that the typical drug transaction was not to be included as one of the "kinds of reciprocal conduct and offenses" covered by the statute (Hechtman, op. cit., at 57). Indeed, while it is conceivable that a purchaser of narcotics could be convicted of criminal sale of a controlled substance as an accessory under section 20.00, application of section 20.10 limits his culpability to that resulting from his own conduct, i.e., possession (see, e.g., Hechtman, op. cit., at 57; 7 Zett, New York Criminal Practice ¶ 62.1 [6], at 62-48). We do not perceive any reason, nor has any been advanced by the People to demonstrate why, where a purchaser obtains drugs from a seller, section 20.10 should not similarly preclude prosecution of the seller as an accessory to the resulting possession by the purchaser, especially since he remains liable for his own conduct: his possession and sale.

The People's reliance on our decision in People v Feliciano (32 N.Y.2d 140) is misplaced. Feliciano is distinguishable and inapposite. There, an individual disembarking from a boat carrying cocaine discovered that he was being followed by customs officials. He dropped the bag containing the narcotics and attempted to flee. Feliciano drove toward him to enable him to get into the car so that he could get away with the 572*572 narcotics. We determined that Feliciano had "aided and abetted" the individual in his possession of the drugs and thus was properly charged with possession of the narcotics as an accessory. Moreover, no issue was raised in that case as to the applicability of section 20.10.^[6] By contrast, here, Manini and Paige engaged in a reciprocal transaction which resulted in Paige's possession of the drugs. The People's reliance on United States v Smith (832 F.2d 1167) is equally misplaced. There the court held that a supplier of controlled substances can be convicted for aiding and abetting the recipient's subsequent possession (see, 18 USC § 2 [a] ["Whoever * * * aids, abets, counsels, commands, induces or procures (an offense against the United States), is punishable as a principal"]; see also, People v Burroughs, 830 F.2d 1574, 1581-1582). We find no provision in the United States Code, however, comparable to New York's Penal Law § 20.10, which specifically provides for an exemption in instances such as those presented here. Thus, United States v Smith cannot be considered as persuasive precedent.

We therefore conclude that in both Manini and Fuente, the evidence presented to the Grand Jury was legally insufficient, as a matter of law, to the extent that evidence tended to establish accessorial liability since Penal Law § 20.10 precludes prosecution of these defendants for criminal possession of a controlled substance where the possession was solely that of another.

B. Constructive Possession

The People alternatively argue that the evidence presented in both cases was sufficient to support the possession counts of the indictments under the theory of constructive possession. We conclude, however, that the evidence presented in Manini was legally insufficient to support the possession counts on a theory of constructive possession, but that in Fuente the evidence was legally sufficient to support the possession counts of the indictment.

The People acknowledge in Manini that constructive possession 573*573 is usually established by showing that a defendant exercised dominion and control over the place where contraband was seized or over the person who actually possessed the property. They argue, however, that a defendant's constructive possession may also be established by showing that he retained a "continuing possessory interest" in the contraband sufficient to give him the requisite dominion and control. They rely principally on United States v Burroughs (830 F.2d 1574, supra) where the defendant was charged with possession with intent to distribute, based on the actual possession of narcotics by others. Burroughs sold heroin "on credit" in New York to various individuals who ultimately possessed and sold the drugs in Jacksonville, Florida. Finding that he had a financial stake in the ultimate sale of the heroin in Florida, the court deemed Burroughs to have had constructive possession of the drugs seized from persons in Florida until he received payment, even though he relinquished physical possession of the drugs in New York (cf., United States v Brunty, 701 F.2d 1375, 1382 [11th Cir], cert denied 464 US 848). Thus, the court rejected defendant's challenge to venue in Florida and concluded that venue was proper (see, 18 USC § 3237 [a] [for an offense to have taken place within the trial district, it must have been begun, continued, or completed there]).

We have never adopted such a broad definition of constructive possession in this State, and are not persuaded that we should do so now. In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised "dominion or control" over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized (see, Penal Law § 10.00 [8]; People v Francis, 79 N.Y.2d 925; People v Pearson, 75 N.Y.2d 1001 [evidence legally insufficient to establish defendant's constructive possession of cocaine found in back room of grocery store in absence of evidence that defendant owned, rented or had control over or a possessory interest in store or room];^[7]People v Tirado, 47 AD2d 193, affd on opn below 38 N.Y.2d 955 [proximity of drugs in apartment and defendant's control of premises support conclusion of constructive possession]; People v Diaz, 112 AD2d 311 [evidence that defendant instructed another to 574*574 retrieve and sell cocaine to undercover officer sufficient to establish defendant's constructive possession of cocaine]; People v Rivera, 77 AD2d 538 [defendant who commanded his brother to get a gun and pull trigger had complete dominion and control over gun]; cf., People v Patel, 132 AD2d 498, lv denied 70 N.Y.2d 935 [in absence of any proof that defendant had authority over person in actual possession of gun, there is no constructive possession]).

Applying these principles to the facts in Manini, we conclude that the evidence was insufficient to establish the requisite level of control or authority by Manini over Paige to support a finding that Manini was in constructive possession of the drugs seized from Paige in New York. The record does not reflect that any evidence was presented to the Grand Jury that Manini, in California, exercised any type of authority over Paige while Paige was in New York in possession of the cocaine. To the contrary, the record evidence is that Manini gave Paige the drugs "on credit" and fully expected to receive payment for them. In order to insure payment on the debt, Manini demanded and received "collateral" from Paige as security. Rather than establishing any continuing dominion and control over the cocaine, it is clear that Manini relinquished dominion and control over the drugs by selling them to Paige, albeit "on credit". There is no indication that Manini was involved in Paige's subsequent distribution or had any authority over what Paige did with the drugs after receiving them. Thus, the evidence presented was legally insufficient to establish that Manini was in constructive possession of the cocaine.

The evidence presented in Fuente, however, compels a different result. Viewing that evidence, as we must, in the light most favorable to the People (see, People v Jennings, 69 N.Y.2d 103, 114-115; People v Pelchat, 62 N.Y.2d 97, supra), we conclude that it was legally sufficient to establish defendant's liability, under a theory of constructive possession, for the actual possession of the kilogram of cocaine seized from the van occupied by codefendants Carballo and Martinez.

A defendant may constructively possess property if he has dominion and control over the drugs as a result of his authority over the person who actually possesses them, rather than through his access to or control over the place where the drugs are kept (see, e.g., People v Passero, 83 AD2d 769; People v Diaz, 112 AD2d 311, supra; 575*575People v Rivera, 77 AD2d 538, supra). Here, there was evidence from the extensive intercepted telephone conversations that the cocaine seized from the van occupied by Carballo and Martinez had been obtained for resale to defendant's customers and was being transported on defendant's behalf and at his direction. Moreover, in contrast to the situation in Manini, Fuente, although not in physical possession of the narcotics, retained a level of control over the drugs sufficient to support a finding of constructive possession. Minutes before the seizure of the cocaine, he was observed following closely behind the van in his own car, and both vehicles stopped together for several minutes in the parking area of the driveway to the house of Martinez's mother before continuing their progress. Fuente was subsequently apprehended in his own car only a short distance from where the van was stopped. Thus, the evidence in its totality provided a sufficient basis for the Grand Jury to conclude that defendant Fuente was in constructive possession of the kilogram of cocaine seized from the van.

Accordingly, the order of the Appellate Division should be reversed in People v Fuente, and counts two and three of the indictment reinstated. In People v Manini the Appellate Division order should be affirmed.

In People v Manini: Order affirmed.

In People v Fuente: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and counts two and three of the indictment reinstated.

June 9, 1992

Motion, treated as a motion for clarification of this Court's opinion, granted. In that the evidence before the Grand Jury was sufficient to establish defendant Fuente's constructive possession of the contraband, we did not reach the issue whether, on the facts of that case, a theory of accessorial liability could also support those charges.

[1] Of the original nine ounces, there is evidence in the record that Paige sold four ounces in Los Angeles, but had only approximately four when he arrived in New York. The ninth ounce "came up missing."

[2] Manini was also charged with criminal possession of a controlled substance in the first and third degrees (relating to his actual possession in April 1988 of the kilogram of cocaine he sold to Paige), conspiracy in the second degree and criminal sale of a controlled substance in the first degree.

[3] Defendant Manini was charged with criminal possession of a controlled substance in the second and third degrees; Fuente was charged with criminal possession of a controlled substance in the first and third degrees.

Penal Law § 220.16 (1) provides, in pertinent part, that "[a] person is guilty of criminal possession of a controlled substance in the third degree when he knowingly and unlawfully possesses * * * a narcotic drug with intent to sell it."

Penal Law § 220.18 (1) provides, in pertinent part, that "[a] person is guilty of criminal possession of a controlled substance in the second degree when he knowingly and unlawfully possesses * * * one or more preparations, compounds, mixtures or substances of an aggregate weight of two ounces or more containing a narcotic drug."

Penal Law § 220.21 (1) provides, in pertinent part, that "[a] person is guilty of criminal possession of a controlled substance in the first degree when he knowingly and unlawfully possesses * * * one or more preparations, compounds, mixtures or substances of an aggregate weight of four ounces or more containing a narcotic drug."

[4] The Penal Law was substantially revised in 1965 (see, L 1965, ch 1030).

[5] The term "sell" is broadly defined in the Penal Law to include any form of transfer of a controlled substance from one person to another, and means "to sell, exchange, give or dispose of to another, or to offer or agree to do the same" (see, Penal Law § 220.00 [1]; Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law art 220, at 14).

[6] We also note the holding in People v Glass (133 AD2d 705) that a defendant who supplied cocaine to another for the other person to sell was liable, as an accessory, for the subsequent sale and possession of the drugs. There is no indication that the court considered the application of Penal Law § 20.10 to the facts of that case. In view of our holding today, to the extent that Glass may be read to the contrary, it is not to be followed.

[7] But see, Penal Law § 220.25 which, in specified circumstances, creates a presumption of possession.