The People of the State of New York, Respondent, v. Stephen Smart, Appellant

The People of the State of New York, Respondent, v Stephen Smart, Appellant. [716 NYS2d 562] [MAJORITY] Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered June 24, 1999, convicting defendant, after a nonjury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 41/2 to 9 years, unanimously affirmed. The court’s verdict was based on legally sufficient evidence and was not against the weight of the evidence. The court properly rejected defendant’s agency defense, since the evidence established that defendant acted primarily for his own benefit in negotiating and promoting the sale, and that the benefit he received cannot be described as incidental (see, People v Lam Lek Chong, 45 NY2d 64, 75, cert denied 439 US 935; People v Page, 260 AD2d 153, lv denied 93 NY2d 928). Concur— Nardelli, J. P., Williams, Mazzarelli, Andrias and Saxe, JJ.