People v. Montanez

Appellate Division of the Supreme Court of New York

People v. Montanez

194 A.D.2d 387, 598 N.Y.S.2d 520, 1993 N.Y. App. Div. LEXIS 5928

Appellate Division of the Supreme Court of the State of New York·Decided June 10, 1993·Published

Opinion

—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered May 8, 1991, after a jury trial, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 5 to 10 years, unanimously affirmed.

The trial court properly refused to instruct the jury with regard to an agency defense since no reasonable view of the evidence would warrant a finding that defendant acted as a mere instrumentality of the buyer in light of testimony which indicated he acted in concert with the distributor of the drugs (see, People v Lam Lek Chong, 45 NY2d 64, cert denied 439 US 935; People v Rivera, 184 AD2d 431, lv denied 80 NY2d 908). Similarly, there is no merit to defendant’s contention that he was deprived of a fair trial when the arresting officer in this "buy and bust” operation testified to the drive-by confirmatory identification of defendant. Such testimony is permissible and not considered improper bolstering (see, People v Gonzalez, 172 AD2d 276, lv denied 77 NY2d 995). Concur—Rosenberger, J. P., Wallach, Ross, Kassal and Nardelli, JJ.

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—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered May 8, 1991, after a jury trial, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 5 to 10 years, unanimously affirmed.

The trial court properly refused to instruct the jury with regard to an agency defense since no reasonable view of the evidence would warrant a finding that defendant acted as a mere instrumentality of the buyer in light of testimony which indicated he acted in concert with the distributor of the drugs (see, People v Lam Lek Chong, 45 NY2d 64, cert denied 439 US 935; People v Rivera, 184 AD2d 431, lv denied 80 NY2d 908). Similarly, there is no merit to defendant’s contention that he was deprived of a fair trial when the arresting officer in this "buy and bust” operation testified to the drive-by confirmatory identification of defendant. Such testimony is permissible and not considered improper bolstering (see, People v Gonzalez, 172 AD2d 276, lv denied 77 NY2d 995). Concur—Rosenberger, J. P., Wallach, Ross, Kassal and Nardelli, JJ.

People v. Montanez, 194 A.D.2d 387, 598 N.Y.S.2d 520, 1993 N.Y. App. Div. LEXIS 5928 (N.Y. Ct. App. 1993).

Pincite

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Opinion

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