Opinion
January 11, 1993
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the judgment is affirmed.
The trial court properly refused to charge the jury on the defense of agency. In the absence of a reasonable view of the evidence indicating that the defendant acted merely as the agent of the buyer, the agency defense should not be submitted to the jury (see, People v. Ortiz, 76 N.Y.2d 446, 448, amended on other grounds 77 N.Y.2d 821; People v. Lam Lek Chong, 45 N.Y.2d 64, 74, cert denied 439 U.S. 935; People v. Argibay, 45 N.Y.2d 45, cert denied sub nom. Hahn-DiGuiseppe v. New York, 439 U.S. 930; see also, People v. O'Berg, 180 A.D.2d 764, 765). In the case before us, there is no reasonable view of the evidence which would have supported the submission of the agency defense to the jury (see, People v. Guzman, 156 A.D.2d 715, 716; People v. Carter, 151 A.D.2d 688, 689). The defendant exhibited salesmanlike knowledge and behavior by quoting to the undercover officer the number of vials he would receive in return for his prerecorded money, which the police recovered from the seller shortly after the transaction. Moreover, he clearly acted as a middleman profiting from the sale he helped to consummate by keeping one of the vials which the seller had transferred to him. Accordingly, the trial court properly declined to give an agency defense charge, as the trial testimony did not support an inference that the defendant was merely acting as an agent of the undercover police officer who posed as a buyer (see, People v. O'Berg, supra; People v. Carter, supra).
The defendant's contention concerning the admissibility of the vials the undercover officer purchased during the transaction is unpreserved for appellate review (see, CPL 470.05; People v. Bynum, 70 N.Y.2d 858), and, in any event, devoid of merit (see, People v. Julian, 41 N.Y.2d 340; People v. Cummings, 184 A.D.2d 574; People v. Carroll, 181 A.D.2d 904; People v. Poulsen, 161 A.D.2d 609; People v. Jiminez, 100 A.D.2d 629). Balletta, J.P., Eiber, O'Brien and Santucci, JJ., concur.