
    The People of the State of New York, Respondent, v Jason Phelps, Also Known as Michael McKinney, Appellant.
    [731 NYS2d 363]
   —Judgment, Supreme Court, New York County (Laura Drager, J.), rendered January 4, 2000, convicting defendant, after a nonjury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

The court’s verdict, in which it rejected defendant’s agency defense, was not against the weight of the evidence. Issues of credibility were properly considered by the trier of facts and there is no basis upon which to disturb its determinations (see, People v Gaimari, 176 NY 84, 94). Evidence properly credited by the court clearly refuted the agency defense (see, People v Lam Lek Chong, 45 NY2d 64, 74-75, cert denied 439 US 935). Concur — Nardelli J. P., Lerner, Rubin, Saxe and Marlow, JJ.  