People v. Fernandez

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

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.