Opinion
258
February 19, 2002.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered June 7, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
SUSAN AXELROD, for respondent.
BRUCE D. AUSTERN, for defendant-appellant.
Before: Nardelli, J.P., Tom, Mazzarelli, Lerner, Buckley, JJ.
Defendant's request for an agency charge was properly denied since there was no reasonable view of the evidence, viewed most favorably to defendant, that defendant participated in the transaction as an agent for the undercover buyer (see, People v. Herring, 83 N.Y.2d 780). The evidence clearly established that defendant acted as a steerer and order taker in the drug transaction, and "there was no evidence that defendant had any other reason to risk arrest by assisting a total stranger in purchasing drugs" (People v. Elvy, 277 A.D.2d 80, lv denied 96 N.Y.2d 783).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.