Opinion
March 13, 1992
Appeal from the Erie County Court, D'Amico, J.
Present — Callahan, J.P., Green, Pine, Lawton and Davis, JJ.
Judgment unanimously affirmed Memorandum: On appeal from a judgment convicting him of criminal sale and criminal possession of a controlled substance in the third degree, defendant argues that the court's charge on the agency defense was inadequate because the court denied his request to amplify the charge to tailor it to the facts of the case. We find that the court adequately instructed the jury to determine whether defendant was a seller or merely a purchaser acting on behalf of a friend or acquaintance (see, People v Lam Lek Chong, 45 N.Y.2d 64, 74-75, cert denied 439 U.S. 935; People v Tower, 122 A.D.2d 617, 618, lv denied 68 N.Y.2d 1004). We do not find that defendant was denied due process by the prosecutor's remarks on summation (see, People v Rubin, 101 A.D.2d 71, 77). Defense counsel registered an objection to only one instance of alleged misconduct complained of on appeal, i.e., that the jury should not "be swayed by this incredible ludicrous story cooked up here in this courtroom." That isolated remark did not amount to a "flagrant and pervasive pattern" of misconduct (People v Demming, 116 A.D.2d 886, 887, lv denied 67 N.Y.2d 941; People v Mott, 94 A.D.2d 415, 418-419). The comments to which no objections were made do not require reversal in the interest of justice (see, People v Broadus, 129 A.D.2d 997, lv denied 70 N.Y.2d 643).
We have examined defendant's remaining arguments on appeal and find them to be without merit.