—Judgment, Supreme Court, New York County (Marcy Kahn, J.), rendered September 2, 1997, convicting him, after a 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 JVs to 9 years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence, viewed as a whole, supported the inference that defendant was a participant in the sale and did not merely identify a source of drugs.
Defendant’s claim that the verdict was repugnant because he was convicted of the sale charge but acquitted of possession with intent to sell is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find no repugnancy because the two charges had different elements and the court made this clear in its instructions to the jury (see, People v Tucker, 55 NY2d 1). Concur — Rosenberger, J. P., Williams, Andrias, Buckley and Friedman, JJ.