People v. Fernandez

193 A.D.2d 406, 597 N.Y.S.2d 68, 1993 N.Y. App. Div. LEXIS 4622

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1993
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Thomas B. Galligan, J.), rendered January 10, 1992, convicting defendant, after non-jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4ti to 9 years, unanimously affirmed.

Viewing the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, cert denied 469 US 932), defendant’s guilt of the crime charged, on an acting in concert theory, was amply supported by the evidence (People v Bleakley, 69 NY2d 490). Defendant’s unprompted communication to the seller of his approval of the buyer, and his role as a "lookout” at the request of the seller, combined with his observed close interaction with the seller before, during and after the sale, creates a reasonable inference that defendant was acting intentionally to aid the seller in safely consummating the sale (see, e.g., People v Ayers, 189 AD2d 680). The trial court’s credibility determinations, entirely reasonable, will not be disturbed by this Court (People v Fonte, 159 AD2d 346, lv denied 76 NY2d 734). As defendant failed to assert an agency defense at trial, he cannot now seek the benefit of that defense (People v Ray, 188 AD2d 288). In any event, there is no reasonable view of the evidence that would support a conclusion that defendant acted merely to assist the buyer. Concur—Ellerin, J. P., Ross, Asch, Kassal and Rubin, JJ.