Opinion
May 2, 1995
Appeal from the Supreme Court, New York County (Angela Mazzarelli, J.).
Since defendant never requested an agency charge at trial, his claim that such should have been given is unpreserved for appellate review as a matter of law (People v Gibbons, 156 A.D.2d 263, lv denied 75 N.Y.2d 919), and we decline to review it in the interest of justice. If we were to review it, we would find that there is no reasonable view of the evidence that defendant, who initiated the drug transaction with the undercover officer, led the officer to his codefendant, communicated to the codefendant the undercover's proposed purchase, and, after the sale, sought assurance from the undercover officer that he had received what he had ordered, acted solely as an agent for the buyer and had no independent interest in promoting the transaction (compare, People v Herring, 83 N.Y.2d 780, with People v Roche, 45 N.Y.2d 78, cert denied 439 U.S. 958; see also, People v Tention, 162 A.D.2d 355, lv denied 76 N.Y.2d 991). Nor did the trial court abuse its discretion in limiting defendant's cross-examination (see, People v Trinidad, 177 A.D.2d 286, lv denied 79 N.Y.2d 865) of police witnesses regarding a separate drug sale to a separate buyer that occurred after the charged sale, which would have served only to distract the jury from the relevant issues. The court also appropriately precluded a detective from providing a legal definition of loitering, which was not charged against defendant. We perceive no abuse of sentencing discretion.
Concur — Ellerin, J.P., Asch, Nardelli and Williams, JJ.