Opinion
1201
May 20, 2003.
Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered December 21, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance on or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
Beth Beller, for respondent.
Annamatesha N. Beason, for defendant-appellant.
Before: Tom, J.P., Mazzarelli, Rosenberger, Ellerin, Williams, JJ.
While the prosecutor's extensive questioning of defendant about drugs violated the trial court's Sandoval ruling, the error was harmless ( see People v. Ayala, 75 N.Y.2d 422, 431).
Defendant's double jeopardy claim concerning his conviction of both criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree is unpreserved (People v. Gonzalez, 99 N.Y.2d 76), and we decline to review it in the interest of justice. Were we to review this claim, we would find no violation of the prohibition against double jeopardy (see Missouri v. Hunter, 459 U.S. 359, 366-369). 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.