Opinion
April 15, 1991
Appeal from the Supreme Court, Kings County (Douglass, J.).
Ordered that the judgment is affirmed.
We reject the defendant's contention that the police lacked probable cause for his arrest. The defendant negotiated the terms of a drug sale with an undercover police officer in a bar and they counted out the money to be exchanged. Thereafter, the undercover officer and the defendant entered a double parked car outside the bar. A back-up team that was aware a sale was imminent was monitoring an audio transmitter the undercover officer was wearing and heard the word "package" whereupon they approached the car, opened the doors and apprehended the defendant. While the transmitter was functioning poorly, and the back-up team could not see into the car, we nevertheless find that they had probable cause to believe that the drug sale was occurring (see, CPL 140.10 [b]; Gerstein v. Pugh, 420 U.S. 103).
In addition, we find that the court properly declined to charge the jury on agency or entrapment as no reasonable view of the evidence supported those theories. Contrary to the defendant's contention, there was no evidence suggesting that the defendant was acting solely as an agent of the buyer with no independent desire to promote the transaction (see, People v. Argibay, 45 N.Y.2d 45, 50, 53-55, cert denied sub nom. Hahn-DiGuiseppe v. New York, 439 U.S. 930). Likewise, the evidence could permit no other realistic conclusion than that the defendant freely and actively promoted and participated in the drug transaction so as to make an entrapment charge inappropriate (see, People v. Alwadish, 67 N.Y.2d 973, 974; People v. Acosta, 166 A.D.2d 452; People v Ventura, 108 A.D.2d 65, affd 66 N.Y.2d 693). The defendant's preference for a Pakistani or other Moslem buyer was based upon his desire to avoid apprehension rather than the lack of a predisposition to sell the drugs. The use of an Arab undercover officer, after the defendant's preference became clear, merely afforded the defendant the opportunity to commit the offense (see, People v. Bradley, 112 A.D.2d 441).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are unpreserved for appellate review or without merit (see, People v. Mathis, 150 A.D.2d 613; People v. Lugo, 150 A.D.2d 502). Mangano, P.J., Brown, Sullivan and Eiber, JJ., concur.