
    The People of the State of New York, Respondent, v Dirk Bobbitt, Appellant.
   Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered February 28, 1990, convicting defendant, after jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him as a second felony offender, to a term of imprisonment of 6 to 12 years, unanimously affirmed.

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 NY2d 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 AD2d 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 AD2d 355, lv denied 76 NY2d 991; see also, People v Armstrong, 160 AD2d 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 AD2d 66; People v Smith, supra). Nor was the sentence imposed, which was slightly more than the minimum term of 4 Vi to 9 years, and considerably less than the maximum term of 12 Vi 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.  