The trial court properly declined to submit criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal possession of a controlled substance in the third degree. Viewing the evidence in the light most favorable to defendant, there is no reasonable view of the evidence to support a finding that he committed the lesser offense but not the greater (People v Scarborough, 49 NY2d 364, 368-370 [1980]; CPL 300.50 [1]). The defendant presented no evidence at trial and the only record evidence is that once the undercover requested drugs, defendant promptly responded by soliciting the quantity she desired and consummating the sale, an indication of intent to sell. Nor was any evidence submitted that indicated that defendant possessed the heroin purely for his personal use (see People v Henry, 272 AD2d 238 [2000], lv denied 95 NY2d 890 [2000] [submission of seventh-degree possession unwarranted where there was evidence of intent to sell and none indicating that defendant possessed the drugs only for personal use]). Finally, even if the jury credited the undercover officer’s testimony that defendant was attracted to her, and inferred that he might have given her the *159drugs for free to curry her favor, the conveyance would still constitute an illegal sale (see People v Starling, 85 NY2d 509, 514-515 [1995]; Penal Law § 220.00 [1]), thus demonstrating intent to sell.
This intent was duly established notwithstanding the failure to recover the prerecorded buy money used, or to corroborate the transaction successfully via Kel transmission, and notwithstanding the jury’s inability to reach a verdict on the sale count. Failure to recover the prerecorded buy money is not an infrequent occurrence, inasmuch as drug traffickers, in response to police tactics, have developed systematic techniques to quickly and covertly dispose of such evidence (see generally People v Brown, 97 NY2d 500, 505-507 [2002]; People v Kelsey, 194 AD2d 248, 252-253 [1994]). Such failure does not preclude a valid conviction (see People v Aguayo, 200 AD2d 541, 542 [1994], lv denied 83 NY2d 963 [1994]; People v Johnson, 187 AD2d 404 [1992], lv denied 81 NY2d 842 [1993]); it is merely an issue for the trier of fact to consider in weighing the evidence of guilt generally and the credibility of the testifying police officers (see People v Benjamin, 292 AD2d 191 [2002], lv denied 98 NY2d 635 [2002]; People v Cuevas, 232 AD2d 234 [1996]; People v Billups, 171 AD2d 513, 513-514 [1991], lv denied 78 NY2d 920 [1991]). For similar reasons, failure to offer corroborating evidence provided by Kel equipment, when used, is not fatal to a conviction. Due to the technical limitations of Kel equipment and the inherent unpredictability of a buy-and-bust operation, it may not provide evidence in a particular case. Similarly, the failure to convict defendant for a contemporaneous drug sale is not fatal to his conviction of possession with intent to sell (People v Freeman, 298 AD2d 311, 311-312 [2002]; People v Vaughn, 242 AD2d 458 [1997], lv denied 91 NY2d 837 [1997]; People v Cruz, 197 AD2d 630, 631 [1993], lv denied 82 NY2d 923 [1994]).
Contrary to defendant’s assertion, People v Devonish (6 NY3d 727 [2005]) is not controlling here. In that case, involving second-degree burglary and its lesser included offense second-degree criminal trespass, the defendant testified as to his alleged innocent intent in entering the premises. In addition, there was testimony by a contractor that he stored tools on the premises and that one of the burglary tools found in the defendant’s possession when he was discovered on the premises definitely belonged to the contractor, and that the other tools might have also. This record evidence allowed the jury to reasonably infer that the defendant may not have entered the premises with an intent to commit a crime. In the instant mat*160ter, no similar record evidence of defendant’s intent to commit only the lesser included offense exists; hence any jury inference would be impermissibly based on sheer speculation and surmise (People v Butler, 84 NY2d 627, 632 [1994]; People v Scarborough, 49 NY2d at 371-372; People v Mercer, 214 AD2d 343 [1995], lv denied 86 NY2d 783 [1995]).
Saxe, J.P., and Friedman, J., concur with Kavanagh, J.; Williams and Buckley, JJ., dissent in a separate opinion by Williams, J.
Judgment, Supreme Court, New York County, rendered December 17, 2004, reversed, on the law, the judgment vacated, and the matter remanded for a new trial.