People v. Howard

Appeal from a judgment of the County Court of Rensselaer County (Dwyer, Jr., J.), rendered June 30, 1988, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

County Court promptly gave a clarifying charge upon defendant’s exception to its initial charge on the defense of agency, and no further exceptions were made by defendant. Additionally, no objections were made when, at the jury’s request, the court gave further instructions on this defense. Under the circumstances, this issue was not properly preserved for review (see, People v McChesney, 160 AD2d 1045; People v Colon, 159 AD2d 582, lv denied 76 NY2d 732). In any event, considering the charge as a whole, we find no error that requires reversal (see, People v Lam Lee Chong, 45 NY2d 64, cert denied 439 US 935). Furthermore, while the jury could have arrived at a different conclusion on the issue of agency, that is not a basis for reversal insofar as the verdict essentially hinged in the jury’s assessment of the credibility of defendant’s version of the events (see, People v Rugg, 141 AD2d 925, lv denied 72 NY2d 924). Therefore, we reject defendant’s claim that the court erred in failing to set aside the verdict as against the weight of the evidence. Finally, defendant’s remaining contentions have been considered and found to be lacking in merit.

Judgment affirmed. Weiss, J. P., Mikoll, Levine, Mercure and Harvey, JJ., concur.