Opinion
2649
December 24, 2002.
Judgment, Supreme Court, New York County (Marcy Kahn, J.), rendered October 9, 2001, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing him to concurrent terms of 4 to 9 years, unanimously affirmed.
Justin V. Shur, for respondent.
Robert S. Dean, for defendant-appellant.
Before: NARDELLI, J.P., SAXE, SULLIVAN, ROSENBERGER, ELLERIN, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence clearly disproved defendant's agency defense beyond a reasonable doubt (see People v. Lam Lek Chong, 45 N.Y.2d 64, 74-75, cert denied 439 U.S. 935). There was no evidence to suggest any understanding that defendant was buying drugs for the officer, rather than selling drugs directly to the officer.
The court properly denied defendant's challenge for cause. Viewing the colloquy as a whole, we conclude that the prospective juror unequivocally stated that his views on drug trafficking would not influence his verdict, and that he would render an impartial verdict based solely on the evidence and on the law as charged by the court (see People v. Chambers, 97 N.Y.2d 417, 419; People v. Arnold, 96 N.Y.2d 358).
Defendant's claim that the prohibition against double jeopardy was violated by his conviction of both criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree is unpreserved (People v. Gonzalez, N.Y.2d [Oct 24, 2002], 2002 WL 31387537), and we decline to review it in the interest of justice. Were we to review this claim, we would find no violation of the prohibition against double jeopardy (see Missouri v. Hunter, 459 U.S. 359, 366-368). We decline to invoke 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.