Opinion
June 27, 1977
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered January 15, 1976, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Judgment affirmed. Defendant was charged in three counts of an indictment with commission of the crimes of: (1) criminal sale of a controlled substance in the third degree; (2) criminal possession of a controlled substance in the third degree; and (3) criminal possession of a controlled substance in the seventh degree. All three counts relate to the same transaction. Following a jury trial, defendant was convicted of the sale count and acquitted of the two possession counts. He now asserts, inter alia, that "the verdict of conviction on the sale count is so inconsistent with the verdict of acquittal on the two possession counts as to be truly repugnant." We do not agree. The evidence reveals that defendant negotiated with, and accepted money from, two undercover officers, agreeing in exchange therefor to supply a quantity of heroin. This is sufficient to constitute guilt of the sale count (see Penal Law, § 220.39, 220.00 Penal, subd 1). However, the evidence also shows that defendant never actually had the drugs in his possession and that physical delivery to the undercover agents was made by a third person. The verdict is consistent with these facts (see People v Pratts, 50 A.D.2d 937). We have considered defendant's other contentions and find them to be without merit. Hopkins, J.P., Hawkins and Suozzi, JJ., concur. Shapiro, J., concurs in the result on constraint of the holding in People v Pratts ( 50 A.D.2d 937).