People v. Darrisaw

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and *788 the case remitted to that court for further consideration in accordance with this memorandum.

The substantive issue tendered for consideration on this appeal is whether defendant, on trial for sale and possession of controlled substances, was entitled to a charge with respect to an agency defense. The Appellate Division held that this issue had been preserved for appellate review and that "in the circumstances of this case, the failure to charge agency constituted reversible error” ( 68 AD2d 822 , 823).

Our examination of the record discloses that defendant did not register a protest to the omission to charge with respect to the agency defense and therefore failed to preserve the error, if any, for appellate review. It is true that in argument at the close of the prosecution’s case with respect to limitations on cross-examination of defendant should he take the witness stand (see People v Sandoval, 34 NY2d 371 ), reference was made to attempts that might be made through defendant’s testimony to establish an agency defense. At the close of all the evidence, however, defense counsel made no request for such an instruction, made no mention of it in his summation, and took no exception at the conclusion of the court’s charge which made no reference to the subject.

In this procedural posture, the case must be remitted to the Appellate Division for that court to determine whether to exercise its discretionary power to review defendant’s claim of reversible error in the absence of adequate protest and, if it so determines, then to rule thereon (People v Cona, 49 NY2d 26, 33-34 ).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed and the case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.