People v Lewis
2008 NY Slip Op 04274 [51 AD3d 475]
May 8, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 16, 2008


The People of the State of New York, Respondent,
v
Anthony Lewis, Appellant.

[*1] Stanley Neustadter, New York (David S. Beller of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Robert R. Sandusky, III of counsel), for respondent.

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 4½ 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.