Opinion
May 6, 1993
Appeal from the Supreme Court, New York County (Thomas B. Galligan, J.).
Viewing the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference (People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), defendant's guilt of the crime charged, on an acting in concert theory, was amply supported by the evidence (People v Bleakley, 69 N.Y.2d 490). Defendant's unprompted communication to the seller of his approval of the buyer, and his role as a "lookout" at the request of the seller, combined with his observed close interaction with the seller before, during and after the sale, creates a reasonable inference that defendant was acting intentionally to aid the seller in safely consummating the sale (see, e.g., People v Ayers, 189 A.D.2d 680). The trial court's credibility determinations, entirely reasonable, will not be disturbed by this Court (People v Fonte, 159 A.D.2d 346, lv denied 76 N.Y.2d 734). As defendant failed to assert an agency defense at trial, he cannot now seek the benefit of that defense (People v Ray, 188 A.D.2d 288). In any event, there is no reasonable view of the evidence that would support a conclusion that defendant acted merely to assist the buyer.
Concur — Ellerin, J.P., Ross, Asch, Kassal and Rubin, JJ.