Opinion
August 10, 1992
Appeal from the Supreme Court, Kings County (Firetog, J.).
Ordered that the judgment rendered under Indictment No. 3412/89 is modified, as a matter of discretion in the interest of justice, by reducing the sentence for criminal possession of a controlled substance in the first degree to 15 years to life imprisonment; as so modified, the judgment is affirmed; and it is further,
Ordered that the judgments rendered under Indictment Nos. 607/89 and 918/89 are affirmed.
The trial court's refusal to instruct the jury with regard to an agency defense was proper since no reasonable view of the evidence could warrant a finding that the defendant acted as a mere instrumentality of the buyer, especially in light of the testimony which indicated that the defendant had a "direct interest in the contraband being sold" and that he, acting in concert with his codefendant, performed his function with a profit motive in mind (see, People v. Roche, 45 N.Y.2d 78, 85-86, cert denied 439 U.S. 958).
The sentence imposed under Indictment No. 3412/89 was excessive to the extent indicated. The defendant's remaining contentions, including those raised in his supplemental pro se brief, are unpreserved for our review (CPL 470.05) or without merit. Bracken, J.P., Sullivan, Rosenblatt and Lawrence, JJ., concur.