Opinion
282, 282A
February 25, 2003.
Judgment, Supreme Court, New York County (Dorothy Cropper, J.), rendered January 12, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (two counts), criminal sale of a controlled substance in or near school grounds (two counts), and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years on each conviction, and order, same court and Justice, entered on or about March 15, 2001, which denied defendant's motion made pursuant to CPL 440.10 to vacate the judgment, unanimously affirmed.
Rona Feinberg, for respondent.
Marlon G. Kirton Pro Se, for defendant-appellant.
Before: Nardelli, J.P., Mazzarelli, Rosenberger, Ellerin, Gonzalez, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues concerning identification and credibility were properly considered by the jury and there is no basis for disturbing its determinations.
The court properly refused to deliver an agency charge, since there was no reasonable view of the evidence, viewed most favorably to defendant, to support such a charge (see People v. Herring, 83 N.Y.2d 780; People v. Lam Lek Chong, 45 N.Y.2d 64, 74-75, cert denied 439 U.S. 935). Defendant's testimony, even if credited, would not support an agency defense.
The court also properly declined to submit criminal possession of a controlled substance in the seventh degree as a lesser included offense since no reasonable view of the evidence would support a finding of possession without intent to sell (People v. Rizzo, 279 A.D.2d 314, lv denied 96 N.Y.2d 805). Defendant's own testimony, even if credited, established possession with intent to sell.
The record establishes that defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 713-714). Defendant's remaining contentions, including those contained in his pro se supplemental brief, are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.