People v. Mitchell

Judgment, Supreme Court, Bronx County (Joseph Mazur, J.), rendered January 11, 1989, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentencing him to a term of imprisonment of from 5 to 10 years, unanimously affirmed.

*479In this "buy-and-bust” operation the prosecution proved beyond a reasonable doubt that defendant was not acting merely as an agent of the buyer. The evidence showed that the undercover officer approached a group of people in front of a bodega, and asked if anyone had crack. Defendant responded that he did. Defendant and the undercover were not acquainted with each other prior to this time. By asking how much the undercover officer wanted, and then gesturing for payment, the defendant acted as a salesman and not as the undercover officer’s agent. (See, People v Vargas, 135 AD2d 853, 854.)

Testimony concerning the "pre-buy meeting” was properly allowed as limited background material.

We have reviewed defendant’s remaining contentions and find them to be without merit. Concur—Sullivan, J. P., Milonas, Rosenberger, Wallach and Smith, JJ.