Opinion
December 30, 1992
Appeal from the Jefferson County Court, Elliott, J.
Present — Callahan, J.P., Boomer, Green, Boehm and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Whether defendant met his burden of establishing the affirmative defense of entrapment (see, Penal Law § 40.05) is a question of fact for the jury (see, People v McGee, 49 N.Y.2d 48, 61, cert denied sub nom. Waters v New York, 446 U.S. 942; People v Dolan, 155 A.D.2d 867, 868, lv denied 75 N.Y.2d 812). The conflicting testimony essentially presented an issue of credibility, which the jury was entitled to resolve against defendant (see, People v Dolan, supra).
The trial court properly denied defendant's request for an instruction on the agency defense. To support the request, defense counsel argued that the evidence supported a finding that defendant was the agent of the confidential informant, who could be viewed either as the "true seller" or the buyer. The court properly rejected defendant's first theory. The agency defense is not available if defendant was acting as agent for the seller (see, People v Roche, 45 N.Y.2d 78, 85, cert denied 439 U.S. 958; People v Urich, 37 A.D.2d 901). An instruction on the agency defense was not warranted under defendant's alternate theory because no reasonable view of the evidence would support a finding that defendant was acting as an agent of the purchaser (see, People v Ortiz, 76 N.Y.2d 446; People v Argibay, 45 N.Y.2d 45, 55, cert denied sub nom. Hahn-DiGuiseppe v New York 439 U.S. 930).