Opinion
December 29, 1992
Appeal from the Supreme Court, Bronx County (Gerald Sheindlin, J.).
Contrary to defendant's contention, the People established beyond a reasonable doubt that when defendant sold narcotics to an undercover officer he acted with the requisite mental intent. The testimony of the undercover officers demonstrated defendant initiated the narcotics transaction, and exhibited both an independent interest in promoting the transaction and salesmanlike behavior (see, People v Seay, 176 A.D.2d 192, lv denied 79 N.Y.2d 864). Since the jury's factual determination rejecting the agency defense is not unreasonable, the verdict should not be disturbed (see, supra, at 193; People v Matthews, 185 A.D.2d 900).
In the circumstances presented, we find, however, the sentence of 8 to 16 years for a $10 sale of two crack vials to be unduly harsh and reduce it to 5 to 10 years (see, People v Acosta, 180 A.D.2d 505, 510, lv denied 80 N.Y.2d 827, and cases cited therein).
Concur — Carro, J.P., Rosenberger, Ellerin, Kupferman and Kassal, JJ.