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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. David GOLDEN, Defendant-Appellant.

The People of the State of New York, Respondent, v. David Ortiz, Defendant-Appellant.

Decided: November 17, 2005

TOM, J.P., MARLOW, ELLERIN, SWEENY, CATTERSON, JJ. Laura R. Johnson, The Legal Aid Society, New York (Karen G. Leslie of counsel), for David Golden, appellant. Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for David Ortiz, appellant. Robert M. Morgenthau, District Attorney, New York (Marc Krupnick of counsel), for respondent.

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered October 2, 2003, convicting defendant Golden, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 3 to 9 years, unanimously affirmed.   Judgment, same court and Justice, rendered August 4, 2003, convicting defendant Ortiz, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

 The court properly exercised its discretion in denying defendant Ortiz's motion for severance.   Initially, we note that Ortiz should have made a timely written motion, setting forth in detail what was allegedly inconsistent about the defenses of himself and defendant Golden (see CPL 255.10[1][g];  255.20 [1], [3];  People v. Roman, 303 A.D.2d 176, 755 N.Y.S.2d 238 [2003], lv. denied 100 N.Y.2d 565, 763 N.Y.S.2d 823, 795 N.E.2d 49 [2003] ).   In any event, the defenses of the two defendants were not so irreconcilable as to require severance (People v. Mahboubian, 74 N.Y.2d 174, 183-184, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989] ).   To accept Golden's contention that he acted as the agent of the buyer, the jury was not required to also reject Ortiz's contention that he was not the person who transferred drugs to Golden.   Furthermore, Golden did not cross-examine Ortiz, and never acted as a “second prosecutor” (People v. Cardwell, 78 N.Y.2d 996, 998, 575 N.Y.S.2d 267, 580 N.E.2d 753 [1991] ) in any respect.

 Defendant Golden's remarks in connection with his successful request that the court deliver an agency charge did not preserve his present challenges to the language employed by the court in instructing the jury on that defense (see People v. Newland, 300 A.D.2d 199, 751 N.Y.S.2d 848 [2002], lv. denied 99 N.Y.2d 631, 760 N.Y.S.2d 112, 790 N.E.2d 286 [2003] ), and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the agency charge, read as a whole, conveyed the appropriate legal principles (see People v. Job, 87 N.Y.2d 956, 641 N.Y.S.2d 589, 664 N.E.2d 500 [1996];  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] ).

 Defendant Golden was not prejudiced by the court's modest departure from the statutorily proscribed order of trial (CPL 260.30), when the court, with the consent of Golden's counsel, instructed the jury on the agency defense immediately prior to summations, and then repeated the same instructions in its main charge after summations.   The circumstances did not present any danger of premature deliberations (compare People v. Townsend, 67 N.Y.2d 815, 501 N.Y.S.2d 638, 492 N.E.2d 766 [1986] ).

Defendant Golden's challenges to the People's summation are unpreserved and unavailing.

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