Opinion
March 15, 1990
Appeal from the Supreme Court, New York County (Budd Goodman, J.).
In this "buy and bust" operation, in which defendant initiated a sale of a sizable quantity of cocaine, on behalf of himself and a partner, to a confidential informant and an undercover State Police officer, we are persuaded that defendant's agency defense was disproved beyond a reasonable doubt (see, e.g., People v Roche, 45 N.Y.2d 78; People v Argibay, 45 N.Y.2d 45).
Defendant had solicited the informant while in jail, contacted him afterwards, negotiated prices, acted as a principal in arranging delivery terms, and apologized to the undercover officer for delivery difficulties and attested to the cocaine's high quality. This behavior clearly evinced defendant's interest as being more than that of a mere agent for the buyer. (See, People v Roche, supra, at 85.)
With respect to the informant's testimony on redirect that he had met defendant in jail, counsel attempted to develop contradictions and inconsistencies which were calculated to discredit the informant's testimony, and thereby opened the door to correction on redirect by appropriate inquiry into relevant surrounding circumstances (cf., People v Melendez, 55 N.Y.2d 445, 451). It must be presumed that the jury followed the court's curative (People v Berg, 59 N.Y.2d 294, 299) and limiting (People v Gibbs, 59 N.Y.2d 930, 932) instructions.
Defendant's challenges to the prosecutor's summation comments are unpreserved as a matter of law (CPL 470.05; People v Balls, 69 N.Y.2d 641), and we decline to review in the interest of justice. His various challenges to the court's supplemental instructions on the agency defense are similarly unpreserved as a matter of law. (CPL 470.05.) Review in the interest of justice is not warranted. In any event there is no error in the summation or supplemental instructions.
Concur — Sullivan, J.P., Carro, Milonas, Rosenberger and Ellerin, JJ.