Opinion
1362
June 10, 2003.
Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered June 27, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years and 1 year, respectively, unanimously affirmed.
Willa Concannon, for respondent.
David Crow, for defendant-appellant.
Before: Buckley, P.J., Mazzarelli, Rosenberger, Friedman, 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 (see People v. Bleakley, 69 N.Y.2d 490, 495). There is no basis for disturbing the jury's determinations concerning credibility. Defendant asked the undercover detective how many packets of drugs he wanted, suspiciously questioned him about whether he was a police officer, led him to the other participants in the transaction, took the buy money and delivered the drugs. All of this conduct was consistent with being a participant in the drug-selling enterprise. Moreover, defendant's own testimony, even if credited, undermined his agency defense. Defendant testified that he helped the undercover buyer buy drugs because he expected to profit by doing so, that he would not have otherwise helped him, and that he would not engage in such conduct as a "favor." Thus, defendant was acting "with the paramount idea that he would profit thereby," motivation inconsistent with an agency defense (People v. Roche, 45 N.Y.2d 78, 85, cert denied 439 U.S. 958; see also People v. Lam Lek Chong, 45 N.Y.2d 64, 74-75, cert denied 439 U.S. 935).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.