Viewing the evidence in the light most favorable to the People, we find it legally sufficient to establish defendant's guilt beyond a reasonable doubt (People v. Contes, 60 N.Y.2d 620, 621), there being evidence from which a jury could reasonably conclude that defendant's conduct constituted more than a mere presence (People v. Smith, 179 A.D.2d 355). An undercover officer, well-versed in "street level buy-and-bust" transactions and in close proximity to defendant, observed him pass distinctively colored vials to co-defendant who, as seller, consummated a transaction with a third person. The officer in turn, now as a purchaser, took part in the same type of transaction. Although defendant was silent throughout the transaction between co-defendant and the undercover officer, the jury could reasonably conclude that defendant's conduct demonstrated an interest in promoting the transaction (People v Tention, 162 A.D.2d 355, lv denied 76 N.Y.2d 991; see also, People v. Armstrong, 160 A.D.2d 206), and amounted to more than mere facilitation. That neither the pre-recorded buy money nor any drugs were later found on defendant does not negate his accessorial liability (People v. Serra, 104 A.D.2d 66; People v Smith, supra). Nor was the sentence imposed, which was slightly more than the minimum term of 4 1/2 to 9 years, and considerably less than the maximum term of 12 1/2 to 25 years that could have been imposed, unduly harsh, particularly in view of the fact that defendant had been most recently released from prison for a prior drug conviction and was still on parole.
Concur — Milonas, J.P., Wallach, Ross, Asch and Smith, JJ.