Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lipp, J.), rendered October 20, 1994, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The court did not improvidently exercise its discretion in denying the defendant’s motion to set aside the verdict. Defense counsel failed to include affidavits in compliance with CPL 330.40 (2) that are required to support a motion under subdivisions (2) and (3) of CPL 330.30 (see also, People v Lopez, 104 AD2d 904).

The defendant’s remaining contentions are without merit. Balletta, J. P., Santucci, Krausman and Florio, JJ., concur.