PEOPLE v. MONTOYA (2004)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered July 12, 2001, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the prosecution established a sufficient chain of custody for the narcotics which were admitted into evidence (see People v. Julian, 41 N.Y.2d 340, 392 N.Y.S.2d 610, 360 N.E.2d 1310;  People v. Isaac, 222 A.D.2d 523, 523-524, 635 N.Y.S.2d 544;  People v. Leach, 203 A.D.2d 483, 610 N.Y.S.2d 868).

The defendant's contention that the jury charge with respect to the agency defense was insufficient under People v. Andujas, 79 N.Y.2d 113, 580 N.Y.S.2d 719, 588 N.E.2d 754 is also without merit.   Although the defendant testified that he had purchased additional narcotics for his own use, the Supreme Court sufficiently explained to the jury that the charges against the defendant related only to the narcotics that he provided to an undercover police officer.   Reading the charge as a whole (see People v. Fields, 87 N.Y.2d 821, 823, 637 N.Y.S.2d 355, 660 N.E.2d 1134;  People v. Warren, 76 N.Y.2d 773, 775, 559 N.Y.S.2d 954, 559 N.E.2d 648), since there was no evidence that the defendant was acting in a dual capacity with respect to those particular narcotics, the Supreme Court's charge adequately instructed the jury as to the agency defense.

Lastly, the defendant's claim that the undercover officer should not have been allowed to testify anonymously is unpreserved for appellate review (see CPL 470.05[2];  People v. Gonzalez, 300 A.D.2d 154, 750 N.Y.S.2d 854).   In any event, the Supreme Court properly permitted the officer to testify anonymously (see People v. Waver, 3 N.Y.3d, 748, 788 N.Y.S.2d 630, 821 N.E.2d 934;  People v. Stanard, 42 N.Y.2d 74, 84-85, 396 N.Y.S.2d 825, 365 N.E.2d 857, cert. denied 434 U.S. 986, 98 S.Ct. 615, 54 L.Ed.2d 481;  People v. Remgifo, 150 A.D.2d 736, 541 N.Y.S.2d 605).