The People of the State of New York, Respondent, v. Michael Dean Evans, Appellant

The People of the State of New York, Respondent, v Michael Dean Evans, Appellant. [742 NYS2d 552] [MAJORITY] —Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Copertino, J.), rendered December 20, 1999, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s contention that the People failed to disprove by legally sufficient evidence that he was acting as an agent of the undercover officer in the narcotics transaction is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19; People v Udzinski, 146 AD2d 245, 250). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]). Further, the Supreme Court properly allowed the People to introduce statements made by the defendant at the time of his arrest regarding his acquittal on similar charges in the past. Since the defendant offered an agency defense, he raised an issue as to his own intent to engage in the sale of drugs. The People were thus entitled to rebut that defense (see People v Portalatin, 126 AD2d 577, 578; People v Gabriel, 125 AD2d 406, 406-407). The defendant’s remaining contentions are without merit. Florio, J.P., Smith, Krausman and Townes, JJ., concur.