Opinion
February 14, 1994
Appeal from the Supreme Court, Kings County (Miller, J.).
Ordered that the judgments are affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt under Indictment No. 9852/90 beyond a reasonable doubt. The record indicates that the defendant was not acting as an agent for the undercover police officer, since, inter alia, the defendant exhibited salesmanlike behavior, and he appeared to have a previous acquaintance with the codefendant (see, People v Roche, 45 N.Y.2d 78, cert denied 439 U.S. 958). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
Contrary to the defendant's contention, the judgment rendered under Indictment No. 9852/90 need not be set aside because the trial court refused to provide a missing witness charge as to the uncalled undercover police officer who was acting as the "ghost", or back-up observer, during the so-called "buy and bust" operation. The inconsistency between the ghost's police report and the undercover officer's testimony was amply explored at trial. In addition, proof of guilt was overwhelming. Any error in this regard was therefore harmless (see, People v. Fields, 76 N.Y.2d 761).
Viewing the representation afforded to the defendant in light of the evidence, the law, and the circumstances presented here, we find that the defendant received meaningful representation by counsel (see, People v. Baldi, 54 N.Y.2d 137, 147; see also, People v. Daley, 172 A.D.2d 619).
The defendant's remaining contentions are without merit. Thompson, J.P., O'Brien, Joy and Altman, JJ., concur.