People v. Kennedy

287 A.D.2d 330, 731 N.Y.S.2d 367, 2001 N.Y. App. Div. LEXIS 9625

Opinion

—Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered August 5, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near upon school grounds and criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4V2 to 9 years, unanimously affirmed.

The court properly refused to instruct the jury on the agency defense. There was no reasonable view of the evidence to support the theory that defendant was acting as an agent for the buyer (see, People v Herring, 83 NY2d 780). On the contrary, the evidence simply established that defendant acted as a salesman who solicited and took the undercover buyer’s drug order, accepted his cash, and relayed the order and cash to the codefendant.

Defendant’s objection to expert testimony concerning the general practices of drug dealers is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the testimony was limited, relevant to issues presented at trial, and not prejudicial (see, People v Kelsey, 194 AD2d 248). Concur — Rosenberger, J. P., Nardelli, Ellerin, Lerner and Saxe, JJ.