In response to an undercover officer's request for two vials of crack, the defendant left the location and returned a short time later with another individual, Rafael Suarez. At such time, the defendant asked the undercover officer, "Two right?" The officer responded affirmatively. Suarez then removed two vials of crack from a change purse and handed them to the undercover officer. The defendant requested payment and the undercover officer handed the defendant $20 in prerecorded money. After the sale, the defendant and Suarez left the scene and, while standing together a few blocks away, were arrested by an undercover backup team.
We find no merit to defendant's argument that the prosecutor failed to disprove his defense of agency beyond a reasonable doubt. Viewing the evidence in a light most favorable to the People (People v. Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), defendant exhibited an independent desire to promote the drug transaction by demanding and receiving money from the undercover officer. (People v. Argibay, 45 N.Y.2d 45, 53-54, cert denied sub nom. Hahn-DiGuiseppe v. New York, 439 U.S. 930; People v. Lam Lek Chong, 45 N.Y.2d 64, 75, cert denied 439 U.S. 935.) Additionally, we note that defendant's arrest, while in the company of Suarez, further supports the conclusion that defendant did not act solely as the agent of the undercover officer during the drug sale.
Defendant's further claim that he was denied a fair trial because the court's "no adverse inference" charge was overextensive is unpreserved as a matter of law since no objection to the charge was made at trial. (People v. Autry, 75 N.Y.2d 836, 839; People v. Chipp, 75 N.Y.2d 327, 340.) Moreover, inasmuch as the charge neither "expressly or * * * unambiguously convey[ed] to the jury that the defendant should have testified", this narrow exception to the preservation requirement may not be invoked here. (People v. Autry, 75 N.Y.2d, supra, at 839.)
Concur — Murphy, P.J., Kassal, Ellerin, Smith and Rubin, JJ.