The verdict was neither based on insufficient evidence nor against the weight of the evidence. Defendant's business-like behavior and close connection with his codefendant clearly established that he was acting as a "steerer" ( compare, People v Smith, 179 A.D.2d 355, lv denied 79 N.Y.2d 953, with People v Rosario, 193 A.D.2d 445, lv denied 82 N.Y.2d 708). Evidence of an uncharged sale was properly received, with adequate although belated limiting instructions ( see, People v Archibald, 211 A.D.2d 451). This bore on defendant's accessorial liability, which was a significant issue notwithstanding his principal defense of mistaken identity ( People v. Carter, 77 N.Y.2d 95, 107, cert denied 499 U.S. 967), and on defendant's intent to sell additional drugs in his constructive possession ( People v. Alvino, 71 N.Y.2d 233, 245).
Viewing this evidence in the light most favorable to the People and giving them the benefit of every reasonable inference, defendant's guilt of the crime charged, on an acting in concert theory, was proven beyond a reasonable doubt (People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932). The jury reasonably concluded that defendant's actions indicated an intent to aid the principal in accomplishing the criminal sale of heroin (see, People v. Kaplan, 76 N.Y.2d 140, 146). In these circumstances, it is not of import that no additional drugs, or the prerecorded buy money, was recovered from defendant (see, People v. Smith, 179 A.D.2d 355, lv denied 79 N.Y.2d 953). Concur — Ellerin, J.P., Wallach, Asch and Nardelli, JJ.
Viewing the evidence in a light most favorable to the People and giving them the benefit of every reasonable inference (People v. Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), defendant's guilt was proven beyond a reasonable doubt by legally sufficient evidence that defendant "steered" an undercover officer to the codefendant for the purchase of valium (see, People v. Ray, 188 A.D.2d 288, 289, lv denied 81 N.Y.2d 845). The fact that neither the prerecorded buy money nor drugs were found on defendant does not negate her accessorial liability under Penal Law § 20.00 (People v. Smith, 179 A.D.2d 355, lv denied 79 N.Y.2d 953). Moreover, upon an independent review of the facts, we find that the verdict was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490). Defendant's claim that the court's instructions near the end of its charge that the jury "should make every effort to come to [an] agreement which speaks the truth as far as this case is concerned" diluted the People's burden of proof is not preserved for review as a matter of law (CPL 470.
Once on the third floor, defendant led the officer to a woman and told her to "hook [him] up with two nicks". The woman then obtained the drugs from a third person and handed them to the undercover. From this evidence, the jury reasonably could conclude that defendant's conduct demonstrated an interest in promoting the transaction and that his involvement went "beyond being a mere extension of the buyer" (People v Tention, 162 A.D.2d 355, 356, lv denied 76 N.Y.2d 991). The fact that defendant never handled the drugs or the purchase money does not negate his accessorial liability (see, People v Smith, 179 A.D.2d 355, lv denied 79 N.Y.2d 953). Concur — Sullivan, J.P., Rosenberger, Wallach and Kupferman, JJ.
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.