PEOPLE v. THADDIES (2008)

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered January 12, 2007, upon a verdict convicting defendant of two counts of the crime of criminal sale of a controlled substance in the third degree.

On two separate occasions, a confidential informant made controlled buys of cocaine from defendant.   After a trial where the informant and four police officers testified, the jury convicted defendant of two counts of criminal sale of a controlled substance in the third degree.   Defendant appeals.

 The People were not required to provide corroboration of the informant's testimony pursuant to CPL 60.22.  “An informant acting as an agent of the police without the intent to commit a crime is not an accomplice whose testimony requires corroboration” (People v. Brown, 2 A.D.3d 1423, 1424, 770 N.Y.S.2d 243 [2003], lv. denied 1 N.Y.3d 625, 777 N.Y.S.2d 24, 808 N.E.2d 1283 [2004] [citations omitted];  see People v. Arrington, 31 A.D.3d 801, 804, 817 N.Y.S.2d 755 [2006], lvs. denied 7 N.Y.3d 865, 868, 824 N.Y.S.2d 610, 612, 857 N.E.2d 1141, 1143 [2006];  People v. Tillman, 289 A.D.2d 1006, 1007, 737 N.Y.S.2d 179 [2001], lv. denied 97 N.Y.2d 734, 740 N.Y.S.2d 707, 767 N.E.2d 164 [2002];  cf. People v. Cona, 49 N.Y.2d 26, 34, 424 N.Y.S.2d 146, 399 N.E.2d 1167 [1979] ).   The informant's testimony, along with the laboratory reports proving that the substance she purchased on each occasion was cocaine, provided sufficient evidence to support the charges.   While there were many reasons to question the informant's credibility, those issues were presented to the jury.   Giving deference to the jury's determination to accept her testimony as credible, the verdict was not against the weight of the evidence (see People v. Walton, 16 A.D.3d 903, 904, 791 N.Y.S.2d 712 [2005], lv. denied 5 N.Y.3d 796, 801 N.Y.S.2d 816, 835 N.E.2d 676 [2005] ).

 We will not consider defendant's arguments concerning County Court's jury charge, as defendant did not object to the charge or request the instructions now raised (see People v. James, 75 N.Y.2d 874, 875, 554 N.Y.S.2d 465, 553 N.E.2d 1013 [1990];  People v. Mahan, 195 A.D.2d 881, 882, 601 N.Y.S.2d 638 [1993] ).

 Lastly, defendant contends that his counsel rendered ineffective assistance by failing to request a jury instruction on the agency defense for one of the drug sales.   An agency defense would have been inconsistent with the defense pursued at trial, namely that defendant was not the individual who sold cocaine to the informant (see People v. McVey, 289 A.D.2d 260, 260, 734 N.Y.S.2d 203 [2001], lv. denied 97 N.Y.2d 758, 742 N.Y.S.2d 618, 769 N.E.2d 364 [2002];  People v. Leigh, 232 A.D.2d 904, 906, 649 N.Y.S.2d 503 [1996], lvs. denied 89 N.Y.2d 1036, 1037, 659 N.Y.S.2d 867, 868, 681 N.E.2d 1314, 1315 [1997] ).   It was therefore reasonable for counsel not to request an agency instruction.

ORDERED that the judgment is affirmed.

KANE, J.

PETERS, J.P., ROSE, LAHTINEN and MALONE JR., JJ., concur.