People v. Johnson

173 A.D.2d 367, 569 N.Y.S.2d 736, 1991 N.Y. App. Div. LEXIS 7283

Opinion

Judgment, Supreme Court, New York County (Richard Lowe, J.), rendered April 5, 1989, convicting defendant of two counts of criminal sale of a controlled substance in the third degree, and sentencing him to concurrent, indeterminate terms of imprisonment of from 4 Vi to 9 years, unanimously affirmed.

In a "buy and bust” operation, an undercover police officer approached defendant and inquired about purchasing drugs. Defendant provided a smaller quantity than the officer had requested, but the officer did not pay him for the vials. Defendant then led the officer to a nearby drug seller, who provided the officer with the quantity requested in return for $30. Defendant then followed the officer, demanding crack or money from her. The officer gave him $2.

The record shows that defendant was not "doing a favor” for the officer; that defendant displayed an independent interest in escorting the officer to a nearby drug dealer; that defendant and the drug dealer had had other dealings; and that defendant was expecting compensation for his service. (See, People v Lam Lek Chong, 45 NY2d 64, 74-75, cert denied 439 US 935.) This evidence was sufficient to disprove beyond a reasonable doubt that defendant was acting as an agent for the undercover officer. Concur—Sullivan, J. P., Carro, Rosenberger, Ross and Smith, JJ.