Opinion
September 17, 1990
Appeal from the Supreme Court, Queens County, Berkowitz, J., Golia, J.
Ordered that the judgments are affirmed.
The defendant argues with regard to the judgment rendered on indictment No. 4390/87, that the trial court committed error by refusing to charge the jury on the defense of agency. We find that it was not error on the facts of this case to refuse to so charge. In the absence of a reasonable view of the evidence indicating that the defendant acted merely as the agent of the buyer, the agency defense should not be submitted to the jury (see, People v. Lam Lek Chong, 45 N.Y.2d 64, 74, cert denied 439 U.S. 935; People v. Roche, 45 N.Y.2d 78, 81, cert denied 439 U.S. 958; People v. Argibay, 45 N.Y.2d 45, 53, cert denied sub nom. Hahn-DiGuiseppe v. New York, 439 U.S. 930; People v. Ladson, 153 A.D.2d 592, 593; People v. Carter, 151 A.D.2d 688, 689). The facts adduced at the trial established that the defendant and his codefendant were standing within a few feet of each other when an undercover officer asked the defendant for some "coke". The defendant told the codefendant, "Give him two". The codefendant then sold the undercover officer two vials of the type of cocaine known as crack in return for $20 and said, "Come back later. We're going to have more stuff". The role of the defendant in this transaction was not that of "one who acts solely as the agent of a purchaser of narcotics" (People v. Roche, supra, at 81). Indeed, the only reasonable view of the evidence on these facts is that he was acting in concert with his codefendant in the sale of drugs.
We have reviewed the defendant's remaining contentions and find them to be without merit. Mangano, P.J., Thompson, Lawrence and O'Brien, JJ., concur.