PEOPLE v. ELVY (2000)

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered August 14, 1998, 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 4 1/212 to 9 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 defense of agency is not intended to protect a person who arranges a drug transaction for the purpose of earning the equivalent of a finder's fee or broker's commission, in contrast to a person who performs a “favor”, possibly rewarded by a tip or incidental benefit (see, People v. Lam Lek Chong, 45 N.Y.2d 64, 75-76, 407 N.Y.S.2d 674, 379 N.E.2d 200, cert. denied 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331).   In this case, there was overwhelming evidence disproving the agency defense, including defendant's own testimony that he agreed to make a $30 drug purchase in return for a $10 benefit.   The evidence established that defendant acted primarily, if not exclusively, for his own advantage, particularly since there was no evidence that defendant had any other reason to risk arrest by assisting a total stranger in purchasing drugs.

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.

MEMORANDUM DECISION.