Opinion
March 25, 1985
Appeal from the Supreme Court, Kings County (Starkey, J.).
Judgment affirmed.
The evidence adduced at trial establishes that defendant initiated the drug sale transaction, acted in a salesmanlike manner by offering the undercover officers "dimes" and "twenties", and personally possessed one of the three packets of heroin sold to the officers. The codefendant's immediate relinquishment of the other two packets to defendant and defendant's intervention when one of the undercover officers attempted to approach the codefendant personally indicate a prior relationship between defendant and the codefendant. There is evidence that defendant profited from the sale of all three packets inasmuch as the police recovered $30 in bills with prerecorded serial numbers from him, and defendant had personally possessed only one "twenty" packet. No reasonable view of this evidence supports defendant's claim that he merely acted as an agent to accommodate the buyer and, therefore, the trial court properly refused to instruct the jury concerning the law of agency ( see, People v. Argibay, 45 N.Y.2d 45, cert denied sub nom. Hahn-DiGuiseppe v. New York, 439 U.S. 930; People v. Bethea, 73 A.D.2d 920).
Moreover, defendant does not make a factual showing sufficient to establish a prima facie case of systematic discrimination by the prosecutor over time in the selection of petit juries ( see, People v. McCray, 57 N.Y.2d 542, cert denied 461 U.S. 961; People v. Charles, 61 N.Y.2d 321, 329).
We have examined defendant's remaining contentions and find them to be without merit. Mangano, J.P., Gibbons, Brown and Lawrence, JJ., concur.