People v. Starks

194 A.D.2d 637, 599 N.Y.S.2d 48, 1993 N.Y. App. Div. LEXIS 5967

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1993
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Wade, J.), rendered July 29, 1991, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the People failed to prove his intent to aid his codefendant in the sale of narcotics sold to an undercover police officer. However, this contention is unpreserved for appellate review, since the defendant did not raise this issue in his motion for a trial order of dismissal due to the People’s failure to prove a prima facie case or on his motion to set aside the verdict (see, CPL 470.05 [2]; People v Johnson, 185 AD2d 247; People v Asaro, 182 AD2d 823; People v Rios, 180 AD2d 696). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish beyond a reasonable doubt the defendant "intentionally aided” his companion in the sale of crack cocaine and was not, as he claims, a mere bystander to the transaction. Following the undercover officer’s approach to the defendant and request for "two caps”, the defendant held his hand out to receive $10 in prerecorded money and directed the undercover officer to his accomplice standing nearby, who then produced two vials of crack cocaine from his pants pocket. The prerecorded money was found on the defendant’s person when he was arrested shortly thereafter.

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Lawrence, J. P., Ritter, Copertino and Santucci, JJ., concur.