Opinion
November 6, 1989
Appeal from the County Court, Westchester County (Nicolai, J.).
Ordered that the judgment is affirmed.
The defendant's conviction arises from his sales of crack to an undercover police officer on two separate occasions. On appeal, the defendant contends that the prosecution failed to disprove his agency defense beyond a reasonable doubt. In determining whether guilt was established as a matter of law, all evidence must be viewed in a light most favorable to the People (see, People v Contes, 60 N.Y.2d 620). Viewed in that light, the evidence reveals that the defendant's conduct evinced sufficient indicia of "[s]alesman-like behavior" (People v Roche, 45 N.Y.2d 78, 85, cert denied 439 U.S. 958) to establish that he was not acting solely on behalf of the undercover officer but that he had a personal interest in promoting the transaction (see, People v Argibay, 45 N.Y.2d 45, 53-54, cert denied sub nom. Hahn-DiGuiseppe v New York, 439 U.S. 930; People v Lam Lek Chong, 45 N.Y.2d 64, 74-75, cert denied 439 U.S. 935). The trial evidence also supports the defendant's conviction of the count of criminal possession of a controlled substance in the seventh degree as the agency defense is not available for mere possession (see, People v Sierra, 45 N.Y.2d 56). Moreover, upon the exercise of our factual review power, we are satisfied that the evidence disproved the agency defense beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15). Mangano, J.P., Thompson, Bracken and Rosenblatt, JJ., concur.