People v. Guzman

156 A.D.2d 715, 549 N.Y.S.2d 174, 1989 N.Y. App. Div. LEXIS 16470

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kramer, J.), rendered October 7, 1986, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention on appeal, that the court erred in denying his request for an agency defense charge, is without merit. The evidence at trial indicated that the undercover police officer entered a building on Ellery Street, proceeded down the hallway, and approached the defendant, whom he had never seen or heard of previously, and asked him if he had any cocaine for sale. When the defendant answered yes, the officer gave him $10 of prerecorded "buy” money which the defendant handed to another individual who was standing behind him on the staircase. This person handed the defendant two glassine envelopes containing cocaine which the defendant then gave to the undercover police officer. Under such circumstances, we find that no reasonable view of the evidence supports a finding that the defendant was a mere instrumentality of the buyer (see, People v Ladson, 153 AD2d 592).

The defendant’s contention that the prosecutorial summation was improper and prejudicial is also without merit. The prosecutor’s comments were responsive to defense counsel’s summation, in which he repeatedly attacked the credibility of the People’s witnesses (see, People v Clink, 143 AD2d 838), and constituted a fair comment upon the evidence (see, People v James, 146 AD2d 712). Thompson, J. P., Lawrence, Eiber and Balletta, JJ., concur.