Opinion
1625
September 23, 2003.
Judgment, Supreme Court, New York County (Rosalyn Richter, J.), rendered April 5, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.
Eli R. Koppel, for respondent.
Samuel Braverman, for defendant-appellant.
Before: Buckley, P.J., Nardelli, Tom, Mazzarelli, Gonzalez, JJ.
Defendant's challenge to the sufficiency of the evidence is unpreserved (People v. Gray, 86 N.Y.2d 10), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the evidence warranted the conclusion that defendant acted as a steerer and lookout in the drug transaction (see People v. Bello, 92 N.Y.2d 523).
The court properly declined to charge criminal facilitation in the fourth degree, since criminal facilitation is not a lesser included offense of criminal sale of a controlled substance, irrespective of whether the indictment alleges accessorial conduct (People v. Atkins, 173 A.D.2d 424, lv denied 78 N.Y.2d 961).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.