Opinion
Argued January 9, 2001.
February 13, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Schulman, J.), rendered February 9, 1999, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Katherine R. Schaefer and Winston McIntosh of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, Jennifer M. Norris, and Kristen Marcelle of counsel), for respondent.
Before: GLORIA GOLDSTEIN, J.P., LEO F. McGINITY, SANDRA J. FEUERSTEIN, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the People failed to disprove the agency defense by legally sufficient evidence is not preserved for appellate review (see, People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to disprove the defendant's claim that he was acting as an agent of the undercover officer in the narcotics transaction (see, People v. Herring, 83 N.Y.2d 780; People v. Lam Lek Chong, 45 N.Y.2d 64; People v. Shands, 269 A.D.2d 613; People v. Trotty, 262 A.D.2d 337; People v. Leybovich, 201 A.D.2d 670). Furthermore, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contention is without merit.