Opinion
Argued November 13, 1980
Decided December 16, 1980
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOHN S. LOCKMAN, J.
Michael J. Obus and Matthew Muraskin for appellant.
Denis Dillon, District Attorney (Robert M. Nigro and William C. Donnino of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Counts 1 and 4 of the indictment (criminal sale of a controlled substance in the first and second degrees, respectively), on which defendant was convicted and that are the subject of this appeal, were submitted to the jury on theories both of completed sale and of agreements to sell (Penal Law, § 220.00, subd 1). While no particular instructions were included as to the elements of the transaction required to be proved to establish an agreement to sell, no protest to their omission from the court's charge was registered by defendant.
The record contains sufficient evidence of transactions in Nassau County to support convictions on the basis of agreements to sell made in that county. The trial court made no error, therefore, when it denied defendant's application to dismiss the counts on the ground that venue was improperly laid in Nassau County.
Nor may defendant now be heard to complain that the trial court erred in failing to submit the venue issue to the jury for its resolution. In view of the fact, as defendant candidly concedes, that he neither requested such submission nor took exception to the court's failure to submit the issue to the jury, his claim of error, if any, has not been preserved for our review.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed in a memorandum.