163 A.D.2d 834 | N.Y. App. Div. | 1990
Judgment unanimously affirmed. Memorandum: Defendant contends that the People failed, as a matter of law, to disprove beyond a reasonable doubt that he was acting solely as an agent of a police informer and that the trial court should have granted his dismissal motion at the close of proof. We disagree. In our view, the trial court properly submitted this issue to the jury to decide as a question of fact in determining whether defendant was guilty of criminal sale of marihuana (see, People v Lam Lek Chong, 45 NY2d 64, 73-75, cert denied 439 US 935; People v Roche, 45 NY2d 78, 85-86, cert denied 439 US 958; People v Torres, 150 AD2d 816, lv denied 74 NY2d 820). Additionally, whether defendant was ácting as the buyer’s agent is not a defense to a possession charge (see, People v Lam Lek Chong, supra, at 74). (Appeal from judgment of Jefferson County Court, Clary, J.—criminal sale of marihuana, third degree.) Presents—Boomer, J. P., Green, Pine, Davis and Lowery, JJ.