PEOPLE v. SMITH (2000)

 We reject defendant's contention that the verdict is against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   It was within the jury's province to reject the testimony of defendant's alibi witnesses and to credit the testimony of the police officers who witnessed the drug transaction (see, People v. Burks, 227 A.D.2d 905, 643 N.Y.S.2d 796, lv. denied 88 N.Y.2d 981, 649 N.Y.S.2d 387, 672 N.E.2d 613;  People v. Medina, 228 A.D.2d 362, 363, 644 N.Y.S.2d 273, lv. denied 88 N.Y.2d 1022, 651 N.Y.S.2d 21, 673 N.E.2d 1248).   County Court properly denied defendant's request for a circumstantial evidence charge.   Because the evidence against defendant was both direct and circumstantial, he was not entitled to such a charge (see, People v. Florez, 265 A.D.2d 491, 697 N.Y.S.2d 300, lv. denied 94 N.Y.2d 880, 705 N.Y.S.2d 12, 726 N.E.2d 489;  People v. Monje, 179 A.D.2d 437, 438, 578 N.Y.S.2d 556, lv. denied 79 N.Y.2d 951, 583 N.Y.S.2d 205, 592 N.E.2d 813).   The court also properly denied defendant's request for an agency charge.   No reasonable view of the evidence supports the theory that defendant was acting only on behalf of the buyer (see, People v. Herring, 83 N.Y.2d 780, 782, 610 N.Y.S.2d 949, 632 N.E.2d 1272;  People v. Tabora, 139 A.D.2d 540, 543, 527 N.Y.S.2d 36, lv. denied 72 N.Y.2d 925, 532 N.Y.S.2d 859, 529 N.E.2d 189).   Contrary to defendant's contention, the court charged the jury on the alibi defense and unequivocally conveyed to the jury that the People had the burden of disproving that defense beyond a reasonable doubt (see generally, People v. Victor, 62 N.Y.2d 374, 378, 477 N.Y.S.2d 97, 465 N.E.2d 817).   Defendant's remaining contentions relating to the alibi charge are not preserved for our review (see, CPL 470.05[2] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see, CPL 470.15[6] [a] ).   The court properly denied defendant's objection to the prosecutor's exercise of a peremptory challenge to exclude a Hispanic potential juror.   The prosecutor provided facially neutral reasons for striking that juror and defendant made no allegation that those reasons were pretextual (see, People v. Allen, 86 N.Y.2d 101, 110-111, 629 N.Y.S.2d 1003, 653 N.E.2d 1173).   Finally, the contention that defendant was denied effective assistance of counsel is based upon facts that are outside the record and is thus not subject to review on direct appeal (see, People v. Bennett, 277 A.D.2d 1008, 716 N.Y.S.2d 631).

Judgment unanimously affirmed.

MEMORANDUM: