Opinion
November 12, 1999
Appeal from Judgment of Herkimer County Court, Kirk, J. — Criminal Sale Controlled Substance, 3rd Degree.
PRESENT: DENMAN, P. J., PINE, HAYES, WISNER AND BALIO, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of two counts each of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). Defendant contends that County Court erred in instructing the jury on the agency defense because it failed to tailor its charge to the facts. We disagree. The court properly determined that there was no evidence indicating that defendant obtained a portion of the drugs for himself and a portion for the undercover officer (cf., People v. Andujas, 79 N.Y.2d 113, 118).
The court did not abuse its discretion in refusing to allow a defense witness to testify regarding collateral matters solely for the purpose of impeaching a prosecution witness (see, People v. Pavao, 59 N.Y.2d 282, 288-289). The sentence is neither unduly harsh nor severe.