Opinion
May 22, 1995
Appeal from the Supreme Court, Suffolk County (Leis, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in a light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that there was legally sufficient proof from which the jury could reasonably conclude that the defendant acted as a seller of the narcotics rather than as an agent of the undercover officer. Although the undercover officer admittedly initiated contact with the defendant by making a finger signal, the defendant's prompt understanding of the signal, combined with her statements, "just one?" and "are you a cop?", could reasonably lead the jury to conclude that the defendant was not acting as a person accommodating the undercover officer who was a complete stranger but, rather, as a streetwise drug peddler (see, People v Davis, 149 A.D.2d 609; People v Scott, 134 A.D.2d 379).
Additionally, the defendant's prior familiarity with the actual seller, her codefendant Brian Clinton, was established by testimony that after the sale, Clinton told the defendant, "I'll be here later", to which the defendant responded, "okay". Thus, the People disproved the agency defense beyond a reasonable doubt (see, People v Herring, 83 N.Y.2d 780; People v Leybovich, 201 A.D.2d 670; People v Scott, 134 A.D.2d 379, supra).
The sentence imposed was not excessive (see, People v Suitte, 90 A.D.2d 80).
We have reviewed the defendant's remaining contentions and find them to be without merit. Balletta, J.P., O'Brien, Thompson and Hart, JJ., concur.