Opinion
May 24, 1994
Appeal from the Supreme Court, Bronx County (William Wallace, III, J.).
Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference, the People's evidence clearly established defendant's guilt beyond a reasonable doubt (People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932). The evidence established that defendant acted in concert with his three codefendants (Penal Law § 20.00), and that the undercover was brought to defendant and an accomplice; that defendant was present while the sale was negotiated; that defendant was directed and agreed to act as lookout; and that the exchange of heroin occurred when defendant signaled that there were no police in the vicinity.
As the finders of the fact, the jury, whose resolution of issues of credibility is entitled to great deference (People v Bleakley, 69 N.Y.2d 490, 495), reasonably chose to credit the testimony of the undercover officer that was more detailed than his Grand Jury testimony or buy report and reject defendant's claim of recent fabrication (see, People v. Bristol, 187 A.D.2d 403, lv denied 81 N.Y.2d 785).
Defendant's sentence, which was six months more than the mandatory minimum allowed, was not excessive and we decline to reduce it.
Finally, defendant's claim that the court violated the jury selection procedures mandated by CPL 270.15 (3) in excusing sworn jurors from the courtroom without defendant's consent while the voir dire continued is unpreserved (People v. Howard, 200 A.D.2d 538), and we decline to review it in the interest of justice. Were we to review we would find that the absence of the jurors caused defendant "`no real prejudice'," and therefore does not warrant a new trial (supra, at 539, quoting People v. Cassado, 156 A.D.2d 183, lv denied 75 N.Y.2d 917).
Concur — Carro, J.P., Wallach, Asch, Nardelli and Williams, JJ.