Defendant, during an undercover "buy and bust" operation, led the undercover officer to an apartment, summoned the co-defendant, and requested two "jumbo" vials of crack for the officer. While defendant neither handled the money nor the narcotics, there was ample evidence that defendant knew the substance was crack cocaine, and that he intentionally aided the sale by leading the officer to the purchase location and requesting delivery on the officer's behalf. (People v Kaplan, 76 N.Y.2d 140, 147.)
As to the claim that facilitation should have been charged as a lesser included offense, it is clear that facilitation is not a lesser included offense of criminal sale of a controlled substance. (People v Glover, 57 N.Y.2d 61; People v Luther, 61 N.Y.2d 724; People v Alexander, 172 A.D.2d 385.) Nor could facilitation be charged as a lesser included offense of the "acting in concert" allegation of the indictment. (People v Hernandez, 135 A.D.2d 732.) "Acting in concert" is not an element of the crime charged, but merely a theory of the case. Moreover, the fact remains that facilitation is simply not a lesser included offense of any crime charged in the indictment which was presented to the jury.
Defendant could not have been prejudiced by the jury charge to the effect that if they found defendant was not acting in concert with Ruiz, defendant could not be found guilty. In any event, the court later omitted this statement from its instructions. Nor was it error to charge that a reasonable doubt is a doubt "which seems reasonable to you." (People v Malloy, 55 N.Y.2d 296, 300.)
As to the People's argument that this Court should overrule People v Kilpatrick ( 143 A.D.2d 1), insofar as it may have suggested that a defendant's challenge to the sufficiency of the evidence in a criminal case is preserved absent a motion for a trial order of dismissal on this ground at the close of the People's case, we are unpersuaded that the case was wrongly decided. (People v Velasquez, 151 A.D.2d 159, affd 76 N.Y.2d 905. ) [The unpublished decision and order of this court entered on May 23, 1991 is recalled and vacated.]
Concur — Murphy, P.J., Carro, Wallach and Rubin, JJ.