Opinion
3435.
Decided April 22, 2004.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered December 6, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
Richard M. Greenberg, Office of the Appellate Defender, New York (Risa Gerson of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Jeffrey W. Davis of counsel), for respondent.
Before: Tom, J.P., Saxe, Ellerin, Lerner, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility. The credible evidence warranted the conclusion that defendant participated in the drug transaction as a steerer and lookout ( see People v. Bello, 92 N.Y.2d 523).
Defendant's challenge to the court's charge requires preservation ( People v. Thomas, 50 N.Y.2d 467), and we decline to review this unpreserved claim in the interest of justice. Were we to review this claim, we would find that the court's standard instruction concerning identification by a single witness could not have suggested to the jury that identity was the only issue in the case ( see People v. Fields, 87 N.Y.2d 821; People v. Harris, 271 A.D.2d 258, lv denied 95 N.Y.2d 853; People v. Feliz, 251 A.D.2d 134, lv denied 92 N.Y.2d 896). The court thoroughly instructed the jury that the People had the burden of proving defendant's accessorial liability beyond a reasonable doubt.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.