Opinion
3447.
Decided April 22, 2004.
Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered September 4, 2002, 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 4½ to 9 years, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Eli R. Koppel of counsel), for respondent.
Before: Tom, J.P., Saxe, Ellerin, Lerner, JJ.
The court properly denied defendant's suppression motion. The undercover officers' radioed descriptions were sufficiently specific, when taken together with the relevant temporal and spatial factors, to establish reasonable suspicion to stop and detain defendant for a confirmatory showup ( see People v. Haulsey, 298 A.D.2d 129, lv denied 99 N.Y.2d 582).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490). Issues of identification, including the weight to be given to discrepancies in the officers' descriptions of defendant, were properly considered by the jury and there is no basis for disturbing its determinations.
Defendant expressly waived his claim that the court should have discharged an allegedly unfit deliberating juror and declared a mistrial ( see People v. Lee, 92 N.Y.2d 987). When defendant, after consulting with his attorney, personally made the decision to forgo a mistrial, a strategic decision of a type normally made by counsel, this did not constitute self-representation requiring the court to warn him of the risks of proceeding pro se ( People v. Spiers, 300 A.D.2d 1033, lv denied 99 N.Y.2d 620). We note that the juror's remarks that called her impartiality into question were favorable to defendant and suggested that she was leaning, at that point in deliberations, toward acquittal.
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.