Opinion
July 22, 1991
Appeal from the County Court, Nassau County (Goodman, J.).
Ordered that the judgment is affirmed.
The defendant's contention that the County Court erred by denying his request for an instruction on the defense of agency (see, People v Roche, 45 N.Y.2d 78, cert denied 436 U.S. 958; People v Lam Lek Chong, 45 N.Y.2d 64, 75, cert denied 439 U.S. 935) is without merit. Although an undercover officer initiated the transaction by inquiring of the defendant as to whether he had any drugs, the defendant both vouched for the quality of his product and directed a cohort to turn over the drugs and accept the money (see, People v Perez, 154 A.D.2d 628; People v Quinones, 150 A.D.2d 399). There is thus no evidence which suggests that the defendant was a mere instrumentality of the undercover officer (see, People v Argibay, 45 N.Y.2d 45, 54, cert denied sub nom. Hahn-DiGuiseppe v New York, 439 U.S. 930; People v Carter, 151 A.D.2d 688; People v Linden, 150 A.D.2d 801).
Also without merit is the defendant's claim that he was denied a fair trial because of alleged attempts by the prosecutor on summation to instruct the jury on the law. The defense counsel's objections to the two instances cited were immediately sustained, the alleged attempts were unsuccessful, and defendant made no request for curative instructions or any other relief. We conclude that the alleged errors were corrected to the defendant's satisfaction (see, People v Santiago, 52 N.Y.2d 865; People v Reid, 140 A.D.2d 639, 640-641; see also, People v Carter, supra). Further, there are no circumstances which suggest that defendant's concurrent terms of 6 to 12 years imprisonment, which were far less than the maximum which could be imposed (see, Penal Law § 70.06), constituted a penalty for exercising his right to proceed to trial (see, People v Pena, 50 N.Y.2d 400, 411-412, cert denied 449 U.S. 1087; People v Reid, supra, at 641), and we conclude that the sentences imposed were neither harsh nor excessive (see, People v Suitte, 90 A.D.2d 80). Thompson, J.P., Bracken, Harwood and Balletta, JJ., concur.