People v. Petioni

—Judgment, Supreme Court, Bronx County (Frank Diaz, J.), rendered April 19, 1989, convicting defendant, after a jury trial, of criminal sale and possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to two concurrent terms of 2 to 4 years, unanimously affirmed. Defendant’s contention that the testimony of the undercover officer, who was the only witness to testify as to defendant’s participation in the sale, was incredible, is without merit. The evidence established that the undercover gave defendant $3.00 in prerecorded buy money, which defendant gave to his accomplice and from whom defendant received 3 valiums. Defendant raised the agency defense, and Criminal Term so charged the jury. Viewing the evidence in the light most favorable to the People it was clearly sufficient to establish that defendant acted in concert with his accomplice and that [108] he was not acting merely as the undercover’s agent (People v Rodriguez, 196 AD2d 690; People v Bobbitt, 180 AD2d 489, 490, lv denied 79 NY2d 1046). We have examined the other contentions of defendant, and we find them to be without merit. Concur — Carro, J. P., Rosenberger, Kassal and Rubin, JJ.