Opinion
2575, 2575A.
Decided December 23, 2003.
Judgment, Supreme Court, New York County (Rosalyn Richter, J.), rendered September 6, 2001, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, and judgment, same court (Charles Tejada, J.), rendered September 30, 1999, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him to a term of 5 years probation, unanimously affirmed.
Dana Poole, for Respondent.
Dolores Kanski, for Defendant-Appellant.
Before: Nardelli, J.P., Saxe, Rosenberger, Williams, Friedman, JJ.
"An indictment charging a defendant as a principal is not unlawfully amended by the admission of proof and instruction to the jury that a defendant is additionally charged with acting-in-concert to commit the same crime, nor does it impermissibly broaden a defendant's basis of liability" ( People v. Rivera, 84 N.Y.2d 766, 769; see also People v. Guidice, 83 N.Y.2d 630, 637). Accordingly, the court properly charged the jury on accessorial conduct even though the indictment contained no such reference. Moreover, defendant was on notice that the prosecution would introduce evidence that he had an accomplice.
The court properly exercised its discretion in denying defendant's mistrial motion based on the prosecutor's isolated summation remark urging the jury to be fair to the children who attend the school near the scene of the drug transaction. The court's instructions were sufficient to prevent any prejudice ( see People v. Santiago, 52 N.Y.2d 865).
The record establishes that defendant 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). Counsel pursued a plausible strategy designed to attack the credibility of the police witnesses.
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.