Opinion
April 10, 1989
Appeal from the County Court, Rockland County (Nelson, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, the court did not err by refusing to instruct the jury on the affirmative defense of agency. The evidence adduced at trial established that the defendant, acting on his own, sold approximately one-half gram of cocaine to an undercover officer. Clearly there was no "reasonable view of the evidence that the defendant [had] acted as a mere instrumentality of the buyer" (People v. Roche, 45 N.Y.2d 78, 86, cert denied 439 U.S. 958) and thus no agency charge was warranted (People v. Argibay, 45 N.Y.2d 45, cert denied sub nom. Hahn-DiGuiseppe v. New York, 439 U.S. 930). Although the defendant claimed to have acted as an agent in an independent drug transaction involving this same undercover officer approximately 10 days before, a charge the officer unequivocally denied, this did not entitle the defendant to an agency instruction with respect to the instant drug transaction which involved only the defendant and the officer.
Furthermore, we find that the defendant was not deprived of a fair trial by the prosecutor's summation. Following a defense summation in which the prosecution's main witness was characterized, inter alia, as a professional witness who "doesn't give a damn about lying on the stand" and who "knows exactly what he needs to tell" the jury to bring about a conviction, the prosecutor's attempt to rehabilitate the impugned witness on summation was properly responsive (see, People v Crawford, 130 A.D.2d 678; People v. Gavins, 118 A.D.2d 582, lv denied 67 N.Y.2d 1052).
We have reviewed the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit (see, CPL 470.05; People v. Smith, 121 A.D.2d 754, lv denied 68 N.Y.2d 773; People v. Price, 120 A.D.2d 690; People v Baldo, 107 A.D.2d 751; People v. Reeves, 57 A.D.2d 1015, affd 44 N.Y.2d 761; see also, People v. Best, 145 A.D.2d 499). Thompson, J.P., Lawrence, Eiber and Spatt, JJ., concur.