Opinion
1309
June 6, 2002.
Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered June 2, 1999, convicting defendant, after a nonjury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4/12 to 9 years, unanimously affirmed.
CHRISTOPHER WILSON, for Respondent.
KENNETH IVES, for Defendant-appellant.
Tom, J.P., Andrias, Saxe, Ellerin, Wallach, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The court properly rejected defendant's agency defense (see, People v. Herring, 83 N.Y.2d 780). The evidence established that defendant was a participant in a drug-selling operation, and "there was no evidence that defendant had any other reason to risk arrest by assisting a total stranger in purchasing drugs" (People v. Elvy, 277 A.D.2d 80, lv denied 96 N.Y.2d 783). Contrary to defendant's argument, there is no evidence that the undercover officer asked for "help" in purchasing drugs. Instead, the officer asked where drugs could be bought, whereupon defendant immediately took the officer's order himself, and filled it with the aid of another person who was clearly defendant's accomplice.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.