People v. Lewis

May 8, 2008
Versions:51 A.D.3d 475
858 N.Y.S.2d 129

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered February 28, 2006, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to a term of 4 1/2 to 9 years, unanimously affirmed.

The court properly denied defendant‘s request for an agency charge since there was no reasonable view of the evidence, viewed most favorably to defendant, to support such an instruction. Nothing in the police testimony supported an agency defense (see People v. Herring, 83 NY2d 780 [1994]), and, according to defendant‘s testimony, he did nothing at all to participate in the drug transaction or act as anyone‘s “agent.” Defendant‘s testimony, if credited, would support a conclusion that his only involvement was to “identify a local purveyor of narcotics” (People v. Rosario, 193 AD2d 445, 446 [1993], lv denied 82 NY2d 708 [1993]), which would not constitute participation in the crime in any capacity, including that of a purchaser‘s “agent.” Concur—Lippman, P.J., Mazzarelli, Sweeny and Moskowitz, JJ.