Opinion
November 8, 1990 Republished
Appeal from the Supreme Court, Bronx County (David Levy, J.).
The evidence, viewed in a light most favorable to the prosecution (People v. Contes, 60 N.Y.2d 620), was sufficient to establish that defendant knew that a controlled substance was being sold, and that defendant intentionally aided the codefendant in carrying out the sale. Defendant not only stood next to the principal seller and helped draw the buyer's attention to the type of drugs that were for sale by calling out, "Blue caps", but after the sale was completed, the defendant informed the buyer that they had the "best crack". The jury was therefore justified in finding that he was an accomplice. (People v. Kaplan, 76 N.Y.2d 140.) Moreover, the court's charge adequately informed the jury that a finding of accomplice liability required not only that the defendant rendered aid to the principal seller but that he did so intentionally, and with knowledge that the substance was cocaine. (Supra.)
We decline at this time to decide whether the surcharge should be waived due to defendant's indigency. (See, People v. Velez, 150 A.D.2d 514, lv. denied 74 N.Y.2d 748.) The decision and order entered herein on September 20, 1990 are hereby recalled and vacated.
Concur — Murphy, P.J., Ross, Carro and Rosenberger, JJ.