People v. Leon — 295 A.D.2d 143

Majority

p. 143

The People of the State of New York, Respondent, v Jose Leon, Appellant.

[742 NYS2d 836]

—Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered June 2, 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 4V2 to 9 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The court properly rejected defendant’s agency defense (see, People v Herring, 83 NY2d 780 ). The evidence established that defendant was a participant in a drug-selling operation, and “there was no evidence that defendant had any other reason to risk arrest by assisting a total stranger in purchasing drugs” (People v Elvy, 277 AD2d 80 , 80, lv denied 96 NY2d 783 ). Contrary to defendant’s argument, there is no evidence that the undercover officer asked for “help” in purchasing drugs. Instead, the officer

p. 144

asked where drugs could be bought, whereupon defendant immediately took the officer’s order himself, and filled it with the aid of another person who was clearly defendant’s accomplice. Concur—Tom, J.P., Andrias, Saxe, Ellerin and Wallach, JJ.