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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALBERTO BAEZA, Appellant.

Ordered that the judgment is affirmed.

The denial of a hearing on that branch of the defendant's motion which was to suppress physical evidence was proper. The affirmation submitted in support of that branch of the motion failed to allege improper police conduct. Therefore, there was no factual basis for the court to direct a hearing (see, People v Roberto H., 67 A.D.2d 549, 552).

Viewing the evidence in the light most favorable to the prosecution, as we must, we find that, based on the testimony presented by an undercover officer, the evidence is sufficient to support the verdict, since a "`rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt'" (People v. Contes, 60 N.Y.2d 620, 621, quoting from Jackson v. Virginia, 443 U.S. 307, 319). Further, the defendant's contention that the jury's finding of not guilty as to criminal sale of cocaine was repugnant to its finding of guilty as to criminal sale of heroin, is unpreserved for appellate review inasmuch as trial counsel did not object to the verdict prior to the discharge of the jury (see, People v. Alfaro, 108 A.D.2d 517, affd 66 N.Y.2d 985; People v. Satloff, 56 N.Y.2d 745). Moreover, since the elements of the aforenoted crimes as charged to the jury were not identical, the claim of repugnancy is without merit (see, People v. Tucker, 55 N.Y.2d 1; People v. Alfaro, supra, at p 519).

We have reviewed the defendant's remaining contentions and find them to be either unpreserved for review or without merit. Mangano, J.P., Weinstein, Lawrence and Kooper, JJ., concur.

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PEOPLE v. BAEZA
(Dec 1, 1986)