Opinion
June 15, 1995
Appeal from the County Court of Albany County (Turner, Jr., J.).
Defendant claims that her involvement in the drug transaction which resulted in her arrest was limited and that she was accommodating the buyer, who was an acquaintance, by obtaining the drugs for him from the seller. Based upon this claim, defendant argues that, as a matter of law, she was the agent of the buyer or, in the alternative, that County Court erred in denying her request for an agency defense charge to the jury. We reject defendant's argument.
The issue of whether a defendant is criminally responsible as a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the jury to resolve on the circumstances of the particular case ( see, People v. Lam Lek Chong, 45 N.Y.2d 64, 74-75, cert denied 439 U.S. 935), but the issue never arises unless some reasonable view of the evidence supports the theory that the defendant was acting only on behalf of the buyer ( see, People v. Herring, 83 N.Y.2d 780, 782; People v. Quittlet, 150 A.D.2d 824, 826, lv denied 74 N.Y.2d 899). Evidence that defendant was acting as an intermediary is insufficient to warrant an agency defense charge ( see, People v Argibay, 45 N.Y.2d 45, 53, cert denied sub nom. Hahn-DiGuiseppe v New York, 439 U.S. 930).
According to the buyer, who was the only participant of the drug transaction to testify, he initiated the transaction by calling defendant because she had told him that people in her neighborhood sold drugs and she could "hook [him] up with someone". The transaction occurred in the kitchen of defendant's apartment, where defendant handed the buyer two packages of cocaine and the buyer gave $200 to defendant. After the exchange, defendant asked whether the buyer was interested in an additional half-ounce of cocaine, which she displayed for the buyer's inspection. Defendant called another man into the kitchen to determine the price of the additional cocaine. The second transaction was not completed because the buyer had no more money. Considering all of the evidence, including defendant's offer to facilitate a drug transaction, her direct participation in the exchange of drugs and cash in her apartment, the merchant-like manner in which she solicited a second transaction and her understanding of drug terminology, we conclude that no reasonable view of the evidence supports the theory that defendant acted solely as the agent of the buyer ( see, People v. O'Berg, 180 A.D.2d 764; see also, People v. Argibay, supra). Defendant claims that she did not profit from the transaction, but the evidence shows that she received $200 from the buyer. Defendant also claims that the fact that she was acquainted with the buyer is relevant to the agency defense. We agree ( see, People v. Lam Lek Chong, supra, at 75), but considering all of the other evidence in this case, we are of the view that defendant's acquaintance with the buyer is insufficient, in and of itself, to create the necessary reasonable view of the evidence to require an agency defense charge.
Defendant's remaining argument concerns the 8 1/3 to 25-year prison sentence she received, which she claims is unduly harsh and excessive. Although the present conviction was defendant's first felony conviction and first conviction for a drug-related offense, she has an extensive criminal history involving larcenous behavior. We see no abuse of discretion in the sentence imposed and no extraordinary circumstances which would warrant modification ( see, People v. Tinning, 142 A.D.2d 402, 408-409, lv denied 73 N.Y.2d 1022).
Cardona, P.J., White, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed.