People v. Starling, 21 N.Y.3d 933 (2013)

A defendant is not entitled to an agency charge where no reasonable view of the evidence suggests they acted merely as an instrumentality of the buyer; furthermore, a claim of error regarding a jury note is unpreserved if defense counsel fails to object when the error could have been cured.

Summary

Defendant was convicted of criminal sale of a controlled substance. The Court of Appeals affirmed the conviction, holding that the trial court did not err in refusing to give an agency charge because no reasonable view of the evidence suggested the defendant acted merely as an agent of the buyer. The Court also held that the defendant’s claim regarding a mode of proceedings error concerning a jury note was unpreserved because defense counsel failed to object when the error could have been cured. Further, delegating the delivery of a non-substantive answer to a jury question to a court officer did not constitute a mode of proceedings error where defense counsel consented to the procedure.

Facts

An undercover police officer, participating in a buy-and-bust operation, approached the defendant with others and inquired about purchasing drugs. The defendant directed them to wait and then led them around the corner. He instructed the group to