Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), for respondent.
Andrias, J.P., Friedman, Moskowitz, DeGrasse, Feinman, JJ.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered April 11, 2012, as amended April 19, 2012, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to concurrent terms of six years, unanimously affirmed.
When viewed as a whole (see People v Ladd, 89 N.Y.2d 893, 895 ), the court's main charge and its responses to a series of notes from the deliberating jury correctly instructed the jury on the agency defense. Defendant's main argument is that one of the court's supplemental instructions tended to direct a verdict. However, this instruction essentially stated the principle that the agency defense is limited to "one who acts solely as an agent of a buyer" (People v Ortiz, 76 N.Y.2d 446, 449  [emphasis added]), and it did not contradict the principles, thoroughly explained to the jury both before and after the instruction at issue, that "whether a particular defendant has acted only as an agent for the buyer is a factual question for the jury, which may consider [various] factors" (id.), and that "the receipt of an incidental ...