Opinion
October 3, 1995
Appeal from the Supreme Court, New York County (Juanita Bing Newton, J.).
Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference ( People v. Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), defendant's guilt was established beyond a reasonable doubt. The undercover offered credible, corroborated testimony that defendant actively solicited him and knowingly offered and agreed to sell him cocaine and that defendant intentionally aided his accomplice who distributed the drugs and collected the money. The evidence that defendant exercised control over the apartment that was used solely to distribute drugs and into which he brought the undercover, was sufficient to support the conclusion that defendant constructively possessed the additional cocaine and gun found therein (Penal Law § 10.00; People v. Robertson, 48 N.Y.2d 993).
Defendant has failed to preserve his contention that there was insufficient evidence of his knowledge of the weight of the drugs ( People v. Gray, 86 N.Y.2d 10), and we decline to review the issue in the interest of justice.
The court did not preclude defendant's girlfriend from testifying and even if counsel's decision not to call her was a tactical error, defendant has failed to prove that he was deprived of a fair trial by less than meaningful representation ( People v. Flores, 84 N.Y.2d 184, 186-187).
We have considered defendant's remaining arguments and find them to be without merit.
Concur — Rosenberger, J.P., Ellerin, Williams, Tom and Mazzarelli, JJ.