PEOPLE v. ESPINO

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jose ESPINO, Defendant-Appellant.

Decided: June 26, 2001

SULLIVAN, P.J., ELLERIN, WALLACH, RUBIN and BUCKLEY, JJ. Nicole Beder, for Respondent. Steven F. Pugliese, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered April 18, 2000, 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.   Defendant's accessorial liability was established by evidence that defendant accompanied his companion in approaching the undercover officer, remained in close proximity, informed the undercover officer of the total price of the drugs, and stayed with the officer while defendant's companion went to retrieve the drugs.   The jury could have reasonably concluded from the circumstances that when defendant announced the total price he was acting as one of the sellers and not as a helpful bystander (see, People v. Bello, 92 N.Y.2d 523, 683 N.Y.S.2d 168, 705 N.E.2d 1209).

 The court properly exercised its discretion in admitting evidence of an apparent uncharged sale to a third person, since this evidence was relevant to issues of intent and acting in concert (see, People v. Rivera, 221 A.D.2d 213, 214, 633 N.Y.S.2d 310).