The People of the State of New York, Respondent, v. Patrick Tomlinson, Appellant

The People of the State of New York, Respondent, v Patrick Tomlinson, Appellant. [720 NYS2d 791] [MAJORITY] —Appeal by the defendant from a judgment of the Supreme Court, Queens County (Schulman, J.), rendered February 9, 1999, convicting him of criminal sale 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 the agency defense by legally sufficient evidence is not preserved for appellate review (see, People v Gray, 86 NY2d 10; People v Udzinski, 146 AD2d 245). 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 disprove the defendant’s claim that he was acting as an agent of the undercover officer in the narcotics transaction (see, People v Herring, 83 NY2d 780; People v Lam Lek Chong, 45 NY2d 64; People v Shands, 269 AD2d 613; People v Trotty, 262 AD2d 337; People v Leybovich, 201 AD2d 670). Furthermore, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]). The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). The defendant’s remaining contention is without merit. Gold-stein, J. P., McGinity, Feuerstein and Smith, JJ., concur.