Opinion
May 29, 1990
Appeal from the Supreme Court, Kings County (Rienzi, J.).
Ordered that the judgment is affirmed.
On January 5, 1987, the defendant and a codefendant were arrested for selling heroin to an undercover officer. The undercover officer testified that he initially made eye contact with the defendant and the codefendant as he approached them. They then simultaneously yelled "Stripes, stripes". The undercover officer understood the term "Stripes" to refer to the striped plastic bags in which heroin is packaged. The undercover officer responded "I'll take one". In turn, the defendant directed the codefendant by saying, "Give him one and I'll look out". Thereafter, the defendant escorted the undercover officer to the lobby of a nearby building and while the codefendant conducted the sale inside the lobby, the defendant positioned himself at the entrance of the building as a lookout. The defendant and codefendant were later arrested, and some of the prerecorded money used in the transaction was recovered from the codefendant.
The trial court properly refused to instruct the jury on the agency defense. An agency charge is warranted only where there is "some reasonable view of the evidence" upon which a trier of facts could find that the defendant "acted as a mere instrumentality of the buyer" (People v. Roche, 45 N.Y.2d 78, 86, cert denied 439 U.S. 958; see, People v. Simpson, 85 A.D.2d 306). Contrary to the defendant's contention, there is no evidence in the record to suggest that the defendant acted as a mere agent or extension of the buyer without an independent desire or inclination to promote the transaction (see, People v Lemmerman, 160 A.D.2d 733).
The defendant's remaining contention is without merit. Lawrence, J.P., Kunzeman, Kooper and Harwood, JJ., concur.