Opinion
3503.
Decided April 29, 2004.
Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered July 23, 2001, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Lyssa M. Sampson of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Walter J. Storey of counsel), for respondent.
Before: Tom, J.P., Ellerin, Lerner, Marlow, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility. The evidence established that defendant intentionally aided the drug transaction between the undercover officer and the codefendant ( see People v. Bello, 92 N.Y.2d 523, 527), and did not merely point out someone selling drugs ( compare People v. Johnson, 238 A.D.2d 267, lv denied 90 N.Y.2d 894). Defendant's behavior can be readily interpreted as screening a potential customer, and then consulting with his partner in the drug operation as to which one of them would furnish the drugs for the sale.
The challenged portions of the prosecutor's summation generally constituted fair comment on the evidence in response to the summations of defendant and the codefendant ( see People v. Bryant, 294 A.D.2d 221, lv denied 99 N.Y.2d 534; People v. Overlee, 236 A.D.2d 133, 144, lv denied 91 N.Y.2d 976), and did not express the prosecutor's personal opinion. To the extent any of the prosecutor's comments were inappropriate, they did not constitute a pattern of improper comments and did not deny defendant a fair trial ( see People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 89 N.Y.2d 863).
The court properly closed the courtroom to the general public during the testimony of two undercover officers, since they both had continuing investigations in the same area as defendant's arrest, would be returning to that area, had pending cases in the courthouse, had been threatened in the past, and took precautions when testifying ( see People v. Ramos, 90 N.Y.2d 490, 498-499, cert denied 522 U.S. 1002).
The court properly denied defendant's request for an agency charge, since there was no reasonable view of the evidence, viewed in the light most favorable to defendant, to support the conclusion that defendant acted solely on behalf of the purchasing undercover officer ( see People v. Herring, 83 N.Y.2d 780; People v. Vaughan, 300 A.D.2d 104, lv denied 99 N.Y.2d 633; People v. Leon, 295 A.D.2d 143).
We decline to exercise our interest of justice jurisdiction to dismiss the non-inclusory concurrent count ( see People v. Spence, 290 A.D.2d 223, lv denied 98 N.Y.2d 641; People v. Kulakov, 278 A.D.2d 519, lv denied 96 N.Y.2d 785).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.