People v. Fernandez — 193 A.D.2d 406

Majority

p. 406

The People of the State of New York, Respondent, v Abel Fernandez, Also Known as Berto Pedrosa, Appellant.

[597 NYS2d 68]

—Judgment, Supreme Court, New York County (Thomas B. Galligan, J.), rendered January 10, 1992, convicting defendant, after non-jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4ti to 9 years, unanimously affirmed.

Viewing the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference (People v Malizia, 62 NY2d 755 , cert denied 469 US 932 ), defendant’s guilt of the crime charged, on an acting in concert theory, was amply supported by the evidence (People v Bleakley, 69 NY2d 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 consummat

p. 407

ing the sale (see, e.g., People v Ayers, 189 AD2d 680 ). The trial court’s credibility determinations, entirely reasonable, will not be disturbed by this Court (People v Fonte, 159 AD2d 346 , lv denied 76 NY2d 734 ). As defendant failed to assert an agency defense at trial, he cannot now seek the benefit of that defense (People v Ray, 188 AD2d 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.

Cases cited

People v. Malizia 62 NY2d 755 N.Y. 1984-05-10 p. 406
People v. Bleakley 69 NY2d 490 N.Y. 1987-05-07 p. 406