Opinion
June 21, 2001.
Judgment, Supreme Court, New York County (Budd Goodman, J.), rendered April 6, 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, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the conviction of criminal sale of a controlled substance in the third degree and dismissing that count of indictment, and otherwise affirmed.
Floyd R. Engelhardt, for respondent.
Karen Marcus, for defendant-appellant.
Before: Rosenberger, J.P., Williams, Tom, Andrias, Marlow, JJ.
The verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). There is no basis upon which to disturb the jury's determinations concerning credibility. Defendant points to minor discrepancies or inconsistencies which in no way undermine the credibility of the undercover detective to whom he sold drugs.
The conviction of criminal sale of a controlled substance in the third degree is vacated in the interest of justice as a non-inclusory concurrent count of criminal sale of a controlled substance in or near school grounds (People v. Gaul, 63 A.D.2d 562, lv denied 45 N.Y.2d 780).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.