Opinion
1432, 1432A
August 21, 2003.
Judgment, Supreme Court, New York County (John Stackhouse, J.), rendered April 19, 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 in or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, and order, same court and Justice, entered on or about April 2, 2002, which denied defendant's motion to vacate his conviction pursuant to CPL 440.10, unanimously affirmed.
David M. Cohn, for respondent.
Sondra Roberto, for defendant-appellant.
Before: Nardelli, J.P., Tom, Andrias, Sullivan, Friedman, JJ.
The totality of the record establishes that defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 713-714; see also Strickland v. Washington, 466 U.S. 668). Trial counsel followed a reasonable strategy and the decisions of counsel that defendant challenges as deficient did not prejudice his defense or deprive him of a fair trial (see People v. Hobot, 84 N.Y.2d 1021, 1024). Furthermore, defendant has not established that he was entitled to a severance from his codefendant (see People v. Mahboubian, 74 N.Y.2d 174, 184; People v. Sanders, 162 A.D.2d 327, lv denied 76 N.Y.2d 944), and counsel's failure to make a timely severance motion did not cause him any prejudice.
The verdict was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490). Issues of credibility and identification were properly considered by the jury and there is no basis for disturbing its determinations.
Defendant's challenge to background testimony about the roles of various participants in a street-level drug operation is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that this brief and limited testimony was properly admitted to explain the absence of pre-recorded buy money on defendant's person and for its relevance to the issue of accessorial liability (People v. Brown, 97 N.Y.2d 500, 506-507).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.