Opinion
October 23, 1989
Appeal from the Supreme Court, Queens County (Appelman, J.).
Ordered that the judgment is affirmed.
We find that it was not error for the trial court to refuse to charge the jury on the defense of agency. In the absence of a reasonable view of the evidence indicating that the defendant acted merely as the agent of the buyer, the agency defense should not be submitted to the jury (see, People v Lam Lek Chong, 45 N.Y.2d 64, 74, cert denied 439 U.S. 935; People v Roche, 45 N.Y.2d 78, 81, cert denied 439 U.S. 958; People v Argibay, 45 N.Y.2d 45, 53, cert denied sub nom. Hahn-DiGuiseppe v New York, 439 U.S. 930). Here, there is no reasonable view of the evidence which would have supported submission of the agency defense to the jury. The defendant, acting alone, exhibited salesmanlike behavior by directing the undercover officer to wait by the side of the road while he retrieved the cocaine. The defendant personally handed the officer the drugs and accepted the money. Furthermore, additional cocaine was found on the defendant when he was arrested some minutes after the transaction. Therefore, it was proper to decline to give an agency instruction because none of the trial testimony supported the inference that the defendant was an intermediary who acted merely as an agent of the police officer posing as a buyer (see, People v Carter, 151 A.D.2d 688).
The defendant also contends that he was deprived of a fair trial by certain comments made in the prosecutor's summation. The majority of such comments were unobjected to at trial and are unpreserved for appellate review (see, CPL 470.05; People v Williams, 46 N.Y.2d 1070). The only comment objected to constituted fair response to arguments made by the defense counsel and was not error (People v Draksin, 145 A.D.2d 500; People v Colon, 122 A.D.2d 150; People v Blackman, 88 A.D.2d 620).
We further find that the defendant's sentence was not excessive (People v Suitte, 90 A.D.2d 80). Brown, J.P., Lawrence, Kooper and Spatt, JJ., concur.