People v. Quinones

157 A.D.2d 552, 550 N.Y.S.2d 294, 1990 N.Y. App. Div. LEXIS 546

Opinions

Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered December 15, 1986, which, following a jury trial, convicted defendant of the criminal sale of a controlled substance in the fifth degree (Penal Law § 220.31) and sentenced him, as a predicate felony offender, to an indeterminate term of 2 to 4 years in prison, affirmed.

Defendant was convicted of the sale of Valium to an undercover police officer in a buy-and-bust operation on the Lower East Side of Manhattan in the afternoon of October 7, 1985. Defendant claimed that he was not a seller but merely the agent of the buyer and had merely aided the undercover officer, who appeared disheveled and on the verge of a seizure, to purchase the Valium. (See, cases involving an agency defense: People v Argibay, 45 NY2d 45 [1978]; People v Lam Lek Chong, 45 NY2d 64 [1978]; People v Roche, 45 NY2d 78 [1978].)

We reject the contention of the defendant that the People failed to disprove the defense of agency beyond a reasonable doubt and his further contention that the charge on "agency” was erroneous or unfair. There was no objection to the court’s initial charge on "agency” or to its additional charge following a note from the jury. As such, the present claim that the "agency” charge was prejudicial is unpreserved. (CPL 470.05 [2]; People v Argibay, 45 NY2d, supra, at 53.) Moreover, the charge as a whole was adequate and fair. The court correctly told the jury that it was giving guidelines to determine agency and not a rigid outline of what the jury should consider. The use of an example as part of those guidelines did not prejudice the defendant. Concur—Sullivan, Milonas and Smith, JJ.