Opinion
116
February 6, 2003.
Judgment, Supreme Court, New York County (Megan Tallmer, J.), rendered October 25, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 7 to 14 years, unanimously affirmed.
Beth Beller, for plaintiff-respondent.
Rosemary Herbert, for defendant-appellant.
Before: Tom, J.P., Saxe, Ellerin, Lerner, Marlow, JJ.
The jury's verdict rejecting defendant's agency defense was based on legally sufficient evidence and was not against the weight of the evidence. Although the transaction may have been more cordial than most, there is no reason to conclude that it was essentially a romantic encounter (compare People v. Tucker, 288 A.D.2d 95). On the contrary, the evidence clearly warranted the conclusion that defendant's primary purpose was to make money for himself and not to do a "favor" for the undercover officer (see People v. Lam Lek Chong, 45 N.Y.2d 64, 74-75,cert denied 439 U.S. 935). We note, inter alia, that defendant sold the drugs to the officer for $5 more than the usual rate and, upon arrest, was found in possession of the additional $5 of pre-recorded buy money.
This Court's prior order, which denied defendant's motion for release of the grand jury minutes, is dispositive of defendant's claim that the absence of such minutes unduly hinders defendant's ability to present an appeal (see People v. Alvarado, 269 A.D.2d 104, lv denied 94 N.Y.2d 916). In any event, defendant has failed to establish a compelling need for the grand jury minutes (see People v. Robinson, 98 N.Y.2d 755 [Oct 22, 2002], 2002 WL 31367176; People v. Fetcho, 91 N.Y.2d 761, 765).
The court properly exercised its discretion in placing reasonable limits on defendant's cross-examination of the undercover officer (see Delaware v. Van Arsdall, 475 U.S. 673, 678-679). Defendant sought to pursue a line of questioning that was excessively remote to any material issue.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.