People v. Alers

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered May . 8, 1989, convicting him of criminal sale of a controlled substance in the third degree and unlawful possession of marihuaná, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant asserts that the trial court erred when it admitted evidence of his prior marihuana sale. However, the *823court correctly ruled that evidence of a prior drug sale is admissible to rebut an agency defense (see, People v Smith, 103 AD2d 859; see also, People v Mascoli, 166 AD2d 612). The defendant claims, however, that the prior drug sale resulted in an adjournment in contemplation of dismissal and, therefore, was inadmissible because the record of that offense was sealed. The defendant did not object to the admission of the evidence of the prior drug sale on this ground at trial, and the trial court had no opportunity to rule on the issue or even to determine whether the defendant’s file had been sealed. Under the circumstances, the defendant’s claim is unpreserved for appellate review (see, CPL 470.05 [2]).

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that the People disproved the defendant’s agency defense beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

We have considered the defendant’s remaining contentions and find them either to be unpreserved for appellate review or without merit. Rosenblatt, J. P., Eiber, O’Brien and Ritter, JJ., concur.