PEOPLE v. SMITH (2008)

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered June 12, 2006, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of 5 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, that he acted solely on behalf of the buyer (see People v. Herring, 83 N.Y.2d 780, 610 N.Y.S.2d 949, 632 N.E.2d 1272 [1994];  People v. Lam Lek Chong, 45 N.Y.2d 64, 74-75, 407 N.Y.S.2d 674, 379 N.E.2d 200 [1978], cert. denied 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331 [1978];  People v. Vaughan, 300 A.D.2d 104, 750 N.Y.S.2d 846 [2002], lv. denied 99 N.Y.2d 633, 760 N.Y.S.2d 115, 790 N.E.2d 289 [2003] ).   Defendant's actions were those of a steerer and order taker who, among other things, offered a discounted price.   There was no evidence he was doing “a favor for a friend” (Lam Lek Chong, 45 N.Y.2d at 74, 407 N.Y.S.2d 674, 379 N.E.2d 200), or “of any conversation between defendant and the undercover purchaser as to why the latter needed or wanted to be represented by an ‘agent’ instead of simply buying his own drugs” (Vaughan, 300 A.D.2d at 104, 750 N.Y.S.2d 846).

We perceive no basis for reducing the sentence.

We have considered and rejected defendant's pro se claims.