PEOPLE v. MONTALVO (1998)

Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered March 21, 1997, convicting defendant, after a 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 4 1/212 to 9 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant's actions of steering the undercover officer directly to the codefendant and another individual, instructing the codefendant that the undercover wanted four vials of crack and staying with the codefendant after the transaction established his guilt as an accomplice (see, People v. Kearse, 215 A.D.2d 104, 626 N.Y.S.2d 88, lv. denied 86 N.Y.2d 797, 632 N.Y.S.2d 510, 656 N.E.2d 609).

 Defendant's claim of ineffective assistance of counsel involves matters of strategy and would require a further record to be developed by way of an appropriate motion pursuant to CPL 440.10 (see, People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486).   To the extent the existing record permits review, we find that counsel's decision to pursue an agency defense was a reasonable one.

Defendant's challenges to the People's cross-examination summation are unpreserved for appellate review and we decline to review them in the interest of justice.   Were we to review them, we would reject them.

MEMORANDUM DECISION.