PEOPLE v. BRIMBERRY (1997)

Judgment, Supreme Court, New York County (Jay Gold, J.), rendered April 13, 1995, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to a term of 4 1/2 to 9 years, unanimously affirmed.

 The trial court properly denied defendant's request for an agency charge, because there was no reasonable view of the evidence supporting the theory that defendant acted solely for the buyer.   Defendant initiated the transaction, led the undercover officer to the codefendant, communicated to the codefendant the undercover's proposed purchase, took the money from the officer in exchange for the drugs, and transferred it to the codefendant (see People v. Alston, 215 A.D.2d 108, 626 N.Y.S.2d 82, lv. denied 86 N.Y.2d 732, 631 N.Y.S.2d 612, 655 N.E.2d 709).

 The court properly refused to give an adverse inference charge as a remedy for the destruction of defendant's purse where defendant failed to make any pretrial effort to secure it although she knew it to be in police custody (People v. Allgood, 70 N.Y.2d 812, 523 N.Y.S.2d 431, 517 N.E.2d 1316).  Moreover, the administrative destruction of the purse by the police was not in bad faith and did not result in prejudice to defendant, given its minimal probative value (see, People v. Campola, 83 N.Y.2d 850, 612 N.Y.S.2d 381, 634 N.E.2d 982).

MEMORANDUM DECISION.