| People v Abdallah |
| 2013 NY Slip Op 08017 [112 AD3d 415] |
| December 3, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kamal Abdallah, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered March 21,2012, as amended May 16, 2012, convicting defendant, after a jury trial, of criminal saleof a controlled substance in the third degree, criminal sale of a controlled substance nearschool grounds and criminal possession of a controlled substance in the third degree, andsentencing him, as a second felony drug offender whose prior felony conviction was aviolent felony, to concurrent terms of six years, unanimously affirmed.
To the extent defendant is making a legal sufficiency claim, it is unpreserved and wedecline to review it in the interest of justice. As an alternative holding, we reject it on themerits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). The evidence supports the jury's rejection ofdefendant's agency defense. There is no basis for disturbing the jury's credibilitydeterminations. To be the buyer's agent, a person "must be a mere extension of thebuyer," who procures drugs "because the buyer has asked him to do so, but not out of anyindependent desire or inclination to promote the transaction" (People v Argibay,45 NY2d 45, 53-54 [1978]). A person who acts as a middleman or a broker between aseller and a buyer, "aiming to satisfy both, but largely for his own benefit, cannotproperly be termed an agent of either" (Argibay, 45 NY2d at 53). Although "thereceipt of an incidental benefit does not in itself negate an agency defense" (People vEchevarria, 21 [*2]NY3d 1, 21 [2013]), defendant'sdemand for a $10 "transportation fee," without which he refused to complete the $20transaction, was more than an incidental benefit or tip (see People v Lam LekChong, 45 NY2d 64, 74-76 [1978], cert denied 439 US 935 [1978]).Concur—Tom, J.P., Saxe, DeGrasse, Richter and Clark, JJ.