Opinion
2623
December 19, 2002.
Judgment, Supreme Court, Bronx County (Peter Benitez, J.), rendered May 24, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 7½ to 15 years and 4½ to 9 years, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence on the third-degree sale conviction to a term of 6 to 12 years, and otherwise affirmed.
T. Charles Won, for respondent.
Paul Wiener, for defendant-appellant.
Before: WILLIAMS, P.J., ANDRIAS, BUCKLEY, LERNER, GONZALEZ, JJ.
Defendant's claim that the court should have given a limiting instruction to accompany the testimony of the police witness concerning the roles of various participants in street-level drug sales is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that although such an instruction should have been provided (People v. Brown, 97 N.Y.2d 500, 506), the error was harmless (see People v. Crimmins, 36 N.Y.2d 230).
Contrary to defendant's argument, the verdict on the possession charge was based on legally sufficient evidence and was not against the weight of the evidence. Defendant's intent to sell the drugs found on his person could be reasonably inferred from the circumstances, including the fact that defendant had just sold drugs to the undercover officer (see People v. Roman, 283 A.D.2d 252, lv denied 96 N.Y.2d 906; People v. Banks, 264 A.D.2d 667, lv denied 94 N.Y.2d 819).
We find the sentence excessive to the extent indicated.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.