Opinion
June 10, 1993
Appeal from the Supreme Court, New York County (Harold Rothwax, J.).
The trial court properly refused to instruct the jury with regard to an agency defense since no reasonable view of the evidence would warrant a finding that defendant acted as a mere instrumentality of the buyer in light of testimony which indicated he acted in concert with the distributor of the drugs (see, People v. Lam Lek Chong, 45 N.Y.2d 64, cert denied 439 U.S. 935; People v. Rivera, 184 A.D.2d 431, lv denied 80 N.Y.2d 908). Similarly, there is no merit to defendant's contention that he was deprived of a fair trial when the arresting officer in this "buy and bust" operation testified to the drive-by confirmatory identification of defendant. Such testimony is permissible and not considered improper bolstering (see, People v. Gonzalez, 172 A.D.2d 276, lv denied 77 N.Y.2d 995).
Concur — Rosenberger, J.P., Wallach, Ross, Kassal and Nardelli, JJ.