
    The People of the State of New York, Respondent, v James Seale, Appellant.
    Argued June 4, 1979;
    decided June 26, 1979
    
      APPEARANCES OF COUNSEL
    
      Robert E. Levy for appellant.
    
      Mario Merola, District Attorney (Robert Lefevre and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant contends that the trial court erred in refusing the defendant’s request for a charge on the affirmative defense of entrapment. The trial court was correct in refusing to instruct the jury on this affirmative defense because the defendant failed to raise a factual question as to whether he was actively induced by government agents to commit the criminal act of possession for which he was convicted (Penal Law, § 40.05).

Defendant also contends that he was deprived of his right to counsel, and his right of confrontation because of the inability and failure of defense counsel to adequately examine a key witness, an informant, on matters relating to the informant’s character. This claim was predicated on counsel’s prior representation of that witness in an unrelated criminal proceeding. On this record it cannot be said .that defense counsel’s efforts on behalf of his client in defense of the possession charge were in any way limited in consequence of such prior representation. In addition, the defendant at trial admitted having engaged in the conduct underlying both possession charges. Since the jury convicted him only of these two offenses, any failure of defense counsel to attack the character of the informant could not reasonably have prejudiced the defendant.

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

Order affirmed in a memorandum.  