People v. Mills — 308 A.D.2d 386

Majority

p. 386

The People of the State of New York, Respondent, v Samuel Mills, Appellant.

[764 NYS2d 622]

—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.

Defendant’s challenge to the sufficiency of the evidence is un

p. 387

preserved (People v Gray, 86 NY2d 10 [1995]), 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 NY2d 523 [1998]).

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 AD2d 424 [1991], lv denied 78 NY2d 961 [1991]).

We perceive no basis for reducing the sentence. Concur— Buckley, P.J., Nardelli, Tom, Mazzarelli and Gonzalez, JJ.

Cases cited

People v. Gray 86 NY2d 10 N.Y. 1995-05-11 p. 387
People v. Bello 92 NY2d 523 N.Y. 1998-12-22 p. 387