People v. Job

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered August 3, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to a term of SVa to 11 years, affirmed. Defendant’s claims relating to the trial court’s closing of the courtroom during the testimony of the undercover police of 498 ficer are unpreserved for appellate review, as a matter of law, since she did not object to the court’s decision to close the courtroom (People v Carter, 162 AD2d 218, 219, lv denied 76 NY2d 984), and we decline to review them in the interest of justice. Were we to review the claims, we would find them to be without merit (People v Miller, 190 AD2d 609, lv denied 81 NY2d 974). Defendant and the dissent argue that the trial court’s instruction that an agent acts solely on the buyer’s behalf was error because it precluded the jury from considering the agency defense even if defendant had only an incidental interest in the transaction. Relying on People v Andujas (79 NY2d 113), defendant and the dissent assert that the court should have expanded its charge on agency by instructing the jury that a person who acts in part to satisfy her own drug habit, as well as to accommodate the buyer’s apparent desire for drugs, must still be considered an agent since that person is acting in the buyer’s role, rather than that of a seller. However, in contrast to Andujas, there was no testimony demonstrating that defendant acted as a buyer in her own right. In fact, defendant’s testimony that she stole two vials from the detective, if accepted, indicated that she acted as a middleman profiting from the sale, acting "largely for [her] own benefit” (People v Argibay, 45 NY2d 45, 53, cert denied sub nom. Hahn-DiGuiseppe v New York, 439 US 930). Thus, the trial court properly refused the request for an expanded charge. In any event, the court charged the jury that a benefit received from the buyer would support an agency defense. Thus, defendant’s unpreserved claim that the court’s reinstruction of the law of agency was improper is without merit. Concur—Murphy, P. J., Sullivan, Kupferman and Asch, JJ.