Opinion
951
April 24, 2003.
Judgment, Supreme Court, New York County (Harold Beeler, J.), rendered September 26, 2001, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.
Seth Davis, for respondent.
Laura I. Appleman, for defendant-appellant.
Before: Tom, J.P., Saxe, Ellerin, Williams, Marlow, JJ.
The verdict was not against the weight of the evidence. Issues of credibility were properly considered by the jury and there is no basis for disturbing its determinations (see People v. Gaimari, 176 N.Y. 84, 94).
The court properly exercised its discretion in admitting brief and limited background testimony. In this observation sale case, the observing officer saw two buyers hand money to defendant, who then handed a glassine envelope to one buyer and an unidentified object to the other. All three persons were immediately arrested and both buyers possessed glassines stamped with the same brand name, while defendant possessed $388 in small denominations but no additional drugs. Under these circumstances, testimony from the observing officer regarding the use of brand names by competing drug sellers and the reasons for the absence of additional drugs was relevant (see People v. Torres, 301 A.D.2d 482, 753 N.Y.S.2d 354; People v. Reed, 215 A.D.2d 209; lv denied 86 N.Y.2d 801). Although the officer's explanation of the use of brand names should have avoided the term "gang," this did not deprive defendant of a fair trial. Defendant's claim that the court should have provided a limiting instruction is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find any error in this regard to be harmless.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.