People v. Smith

Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered September 8, 1993, 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 41/2 to 9 years, unanimously affirmed.

Viewing the evidence in a light most favorable to the People and giving them the benefit of every reasonable inference (People v Contes, 60 NY2d 620, 621), defendant’s guilt was proven beyond a reasonable doubt by evidence that he intentionally aided his accomplices by steering an undercover *534officer to them for the purchase of drugs, directing one accomplice to provide him with drugs, acting as a lookout during the sale, and by remaining with the accomplices after the sale was completed (see, People v Kearse, 215 AD2d 104, lv denied 86 NY2d 797). The testimony adduced at trial established "that defendant’s interest in promoting the transaction and involvement therein went beyond being a mere extension of the buyer’ ” (supra, at 105, quoting People v Tention, 162 AD2d 355, 356, lv denied 76 NY2d 991).

By raising an agency defense during his testimony, defendant opened the door to cross-examination concerning his prior crimes in order to promote the jury’s consideration of the issue whether he was a seller or merely doing a favor for a friend (see, People v Castaneda, 173 AD2d 349, lv denied 78 NY2d 963).

Defendant’s contention that suppression of a statement he made to his accomplices was required due to the People’s failure to provide notice pursuant to CPL 710.30 (1) (a) is unpreserved (CPL 470.05 [2]; People v Guerrero, 69 NY2d 628, revg on dissenting opn 111 AD2d 350, 355-356), and without merit. The People were not required to provide such notice since defendant’s accomplices were not "public servants” (see, People v Rivera, 210 AD2d 178, lv denied 85 NY2d 865). Moreover, such statement did not have to be specified in the People’s bill of particulars (CPL 200.95 [1]; see, People v Bignall, 195 AD2d 997, lv denied 82 NY2d 891). Concur — Rosenberger, J. P., Rubin, Asch, Williams and Mazzarelli, JJ.