Opinion
Submitted April 20, 1999
June 1, 1999
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Browne, J.), rendered July 3, 1997, convicting him of criminal sale of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree, after a nonjury trial, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Angela Badamo of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Ellen C. Abbot of counsel; Lori B. Rodman on the brief), for respondent.
WILLIAM D. FRIEDMANN, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the People failed to disprove his agency defense beyond a reasonable doubt is without merit. Viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to permit the trier of fact to conclude that the defendant acted as a seller of the controlled substance rather than as an agent of the undercover officer ( see, People v. Herring, 83 N.Y.2d 780; People v. Clark, 215 A.D.2d 682; People v. Leybovich, 201 A.D.2d 670). Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses ( see, People v. Gaimari, 176 N.Y. 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record ( see, People v. Garafolo, 44 A.D.2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15; People v. Alvarez, 235 A.D.2d 484).