PEOPLE v. JOHNSON (2001)

Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered January 5, 1999, convicting defendant, after a nonjury 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 verdict was not against the weight of the evidence.   Defendant's agency defense was clearly refuted by the evidence, including defendant's testimony that he was engaged in the business of arranging drug transactions in return for a share of the drugs.   Since, even under defendant's version of the facts, he received more than a tip or incidental benefit, and acted primarily, if not exclusively, for his own profit, he was not entitled to the protection afforded by the agency defense (see, People v. Lam Lek Chong, 45 N.Y.2d 64, 74-75, 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;  People v. Taim, 283 A.D.2d 363, 725 N.Y.S.2d 41;  People v. Elvy, 277 A.D.2d 80, 715 N.Y.S.2d 247, lv. denied 96 N.Y.2d 783, 725 N.Y.S.2d 647, 749 N.E.2d 216).