People v. Montanez

—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered May 8, 1991, after a jury trial, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 5 to 10 years, unanimously affirmed.

The trial court properly refused to instruct the jury with regard to an agency defense since no reasonable view of the evidence would warrant a finding that defendant acted as a mere instrumentality of the buyer in light of testimony which indicated he acted in concert with the distributor of the drugs (see, People v Lam Lek Chong, 45 NY2d 64, cert denied 439 US 935; People v Rivera, 184 AD2d 431, lv denied 80 NY2d 908). Similarly, there is no merit to defendant’s contention that he was deprived of a fair trial when the arresting officer in this "buy and bust” operation testified to the drive-by confirmatory identification of defendant. Such testimony is permissible and not considered improper bolstering (see, People v Gonzalez, 172 AD2d 276, lv denied 77 NY2d 995). Concur—Rosenberger, J. P., Wallach, Ross, Kassal and Nardelli, JJ.