Opinion
5781
January 3, 2002.
Judgment, Supreme Court, Bronx County (Robert Seewald, J.), rendered November 3, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, and sentencing him to concurrent terms of 4 to 12 years on the sale convictions and 3 to 9 years on the possession conviction, unanimously affirmed.
NISHA M. DESAI, for respondent.
DAVID J. KLEM, for defendant-appellant.
Before: Sullivan, J.P., Rosenberger, Lerner, Rubin, Buckley, JJ.
The verdict was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility. The evidence warranted the conclusion that the distance between the drug transaction and the school in question was accurately measured and that the 1000-foot requirement of Penal Law §§ 220.00(14)(b) and 220.44(2) had been met.
Defendant's claim that the court's charge insufficiently delineated the separate elements of the crimes charged requires preservation (see,People v. Robinson, 88 N.Y.2d 1001), and we decline to review this unpreserved claim in the interest of justice. Were we to review this claim, we would find that the court properly instructed the jury on the elements of the crimes (see, People v. Fields, 87 N.Y.2d 821) and that the charge was not confusing and did not misstate the burden of proof. Defendant's challenge to the charge is one of form rather than substance.
We perceive no basis for reduction of sentence.
We decline to invoke our interest of justice jurisdiction to dismiss the non-inclusory concurrent count. (People v. Lee, 287 A.D.2d 299, 731 N.Y.S.2d 362
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.