Opinion
February 11, 1992
Appeal from the Supreme Court, New York County (Harold Rothwax, J.).
Viewing the evidence in the light most favorable to the People, we find it legally sufficient to establish defendant's guilt beyond a reasonable doubt (People v. Contes, 60 N.Y.2d 620, 621), there being evidence from which a jury could reasonably conclude that defendant's conduct constituted more than a mere presence (People v. Smith, 179 A.D.2d 355). An undercover officer, well-versed in "street level buy-and-bust" transactions and in close proximity to defendant, observed him pass distinctively colored vials to co-defendant who, as seller, consummated a transaction with a third person. The officer in turn, now as a purchaser, took part in the same type of transaction. Although defendant was silent throughout the transaction between co-defendant and the undercover officer, the jury could reasonably conclude that defendant's conduct demonstrated an interest in promoting the transaction (People v Tention, 162 A.D.2d 355, lv denied 76 N.Y.2d 991; see also, People v. Armstrong, 160 A.D.2d 206), and amounted to more than mere facilitation. That neither the pre-recorded buy money nor any drugs were later found on defendant does not negate his accessorial liability (People v. Serra, 104 A.D.2d 66; People v Smith, supra). Nor was the sentence imposed, which was slightly more than the minimum term of 4 1/2 to 9 years, and considerably less than the maximum term of 12 1/2 to 25 years that could have been imposed, unduly harsh, particularly in view of the fact that defendant had been most recently released from prison for a prior drug conviction and was still on parole.
Concur — Milonas, J.P., Wallach, Ross, Asch and Smith, JJ.