People v. Henry

265 A.D.2d 179, 695 N.Y.S.2d 569, 1999 N.Y. App. Div. LEXIS 9796

Opinion

—Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered March 25, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

The court properly declined to instruct the jury on the agency defense since there was no reasonable view of the evidence that he acted as a mere extension of the undercover buyer (see, People v Herring, 83 NY2d 780). Even if defendant’s implausible testimony were to be fully credited, it would fail to support defendant’s contention. In his testimony, defendant admitted that he sold drugs to the undercover buyer largely because he chose to comply with a drug dealer’s direction to do so. Although defendant testified that he complied out of fear of the drug dealer, such a claim fails to support an agency defense (see, People v Hendrix, 199 AD2d 643, lv denied 83 NY2d 806). We note that defendant did not request a charge on the defense of duress (Penal Law § 40.00), and the evidence failed to support that defense as well. Concur — Rosenberger, J. P., Tom, Mazzarelli, Lerner and Friedman, JJ.