The People of the State of New York, Respondent, v. Vincent Carr, Appellant

The People of the State of New York, Respondent, v Vincent Carr, Appellant. [679 NYS2d 108] [MAJORITY] Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered October 31, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 4V2 to 9 years, unanimously affirmed. The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The jury had ample basis upon which to reject defendant’s agency defense. Defendant, who had no prior contact with the undercover officer, exhibited behavior before, during and after the sale, that was consistent with that of a “steerer” in a drug operation (see, People v Herring, 83 NY2d 780, 782). Since the ineffective assistance of counsel portion of defendant’s motion to set aside the verdict was based on facts outside the record (see, CPL 330.30 [1]), it was not properly before the court. Moreover, defendant was not prejudiced by any comments during the court’s colloquy with counsél. Concur — Lerner, P. J., Sullivan, Mazzarelli, Andrias and Saxe, JJ.