Opinion
3000, 3001, 3002.
Decided March 2, 2004.
Judgments, Supreme Court, New York County (Laura Visitacion-Lewis, J.), rendered June 28, 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, as a second felony offender, to concurrent terms of 5½ to 11 years, and convicting him, upon his plea of guilty, of violation of probation, and revoking his prior sentences of probation and resentencing him to terms of 1 to 3 and 2 to 6 years, to run concurrently with each other and with the sentence imposed upon the convictions after trial, unanimously affirmed.
John A. Zadrozny, Marianne Karas, for Respondent.
Walter J. Storey, Paul Morris, for Defendant-Appellant.
Before: Buckley, P.J., Mazzarelli, Saxe, Ellerin and 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 ( see People v. Gaimari, 176 N.Y. 84, 94). In this observation sale case, the totality of defendant's conduct established that he sold drugs to an apprehended purchaser.
Defendant's claim that court should have given a circumstantial evidence charge is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the evidence did not require such a charge ( see People v. Roldan, 88 N.Y.2d 826; People v. Daddona, 81 N.Y.2d 990, 992).
The apparent tactical decision by defendant to forgo a CPL 440.10 motion leaves us with a record that establishes defendant overall received effective assistance of counsel ( see People v. Benevento, 91 N.Y.2d 708, 713-714; see also Strickland v. Washington, 466 U.S. 668).
Defendant's claim that his June 2001 plea to violation of probation was involuntary is unpreserved ( People v. Lopez, 71 N.Y.2d 662, 665-666), and we decline to review it in the interest of justice. Were we to review this claim, we would reject it. Furthermore, the court properly exercised its discretion in resentencing defendant to terms of imprisonment.
On this appeal from a resentence following a revocation of probation, defendant's attacks on one of the underlying judgments upon which the court had originally sentenced him to probation are not properly before this Court (CPL 450.30,[3]; People v. McMillan, 228 A.D.2d 166, lv denied 88 N.Y.2d 1068). These arguments are without merit in any event.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.