Opinion
1350
June 10, 2003.
Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered April 11, 2001, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal sale of a controlled substance in or near school grounds and unlawful possession of a radio device, and sentencing him, as a second felony offender, to an aggregate term of 5½ to 11 years, unanimously affirmed.
Dana Poole, for respondent.
Robert S. Dean, for defendant-appellant.
Before: Nardelli, J.P., Tom, Andrias, Lerner, JJ.
The court properly denied defendant's request for a circumstantial evidence charge. "Eyewitness testimony . . . established that defendant engaged in acts which directly proved that at the very least he acted as a lookout while the crime was being committed" (People v. Roldan, 88 N.Y.2d 826, 827; see also People v. Daddona, 81 N.Y.2d 990).
The court properly exercised its discretion in permitting the "ghost" officer to testify, based on her experience, as to the meaning of certain gestures (see People v. Stewart, 279 A.D.2d 335) . With regard to the other portion of this officer's testimony challenged by defendant, the officer was simply using a descriptive phrase and was not expressing an improper lay opinion (see People v. Dax, 233 A.D.2d 177, lv denied 89 N.Y.2d 986).
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).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.