People v. Davis

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered October 29, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

The jury’s verdict rejecting defendant’s agency , defense was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury’s determinations concerning credibility. The evidence established that defendant acted primarily for his own benefit in promoting the sale, and that the benefit he received cannot be described as incidental (see, People v Lam Lek Chong, 45 NY2d 64, 75, cert denied 439 US 935; People v Page, 260 AD2d 153, lv denied 93 NY2d 928).

The court’s agency charge, read as a whole, conveyed the proper standards, in that the court correctly instructed the jury that it could consider a benefit received from the buyer as supportive of an agency defense (People v Job, 87 NY2d 956). Since there was no evidence to suggest that defendant was acting as a buyer in his own right, the court properly declined defendant’s request to charge based upon People v Andujas (79 NY2d 113).

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur — Rosenberger, J. P., Tom, Mazzarelli, Andrias and Saxe, JJ.