Opinion
April 27, 1992
Appeal from the Supreme Court, Kings County (Starkey, J.).
Ordered that the judgment is affirmed.
The defendant asserts that the trial court erred when it admitted evidence of his prior marihuana sale. However, the court correctly ruled that evidence of a prior drug sale is admissible to rebut an agency defense (see, People v Smith, 103 A.D.2d 859; see also, People v Mascoli, 166 A.D.2d 612). The defendant claims, however, that the prior drug sale resulted in an adjournment in contemplation of dismissal and, therefore, was inadmissible because the record of that offense was sealed. The defendant did not object to the admission of the evidence of the prior drug sale on this ground at trial, and the trial court had no opportunity to rule on the issue or even to determine whether the defendant's file had been sealed. Under the circumstances, the defendant's claim is unpreserved for appellate review (see, CPL 470.05).
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that the People disproved the defendant's agency defense beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (see, CPL 470.15).
We have considered the defendant's remaining contentions and find them either to be unpreserved for appellate review or without merit. Rosenblatt, J.P., Eiber, O'Brien and Ritter, JJ., concur.