Opinion
October 5, 2000.
Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered June 22, 1999, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.
Christopher Sanders, for respondent.
Abigail Everett, for defendant-appellant.
Before: Mazzarelli, J.P., Ellerin, Wallach, Saxe, JJ.
The verdict was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility. There was ample evidence of intent to sell, and defendant's acquittal of the sale charge does not warrant a different conclusion (see, People v. Rayam, 94 N.Y.2d 557).
The court properly exercised its discretion in denying defendant's mistrial motion after a testifying officer shook his head and made a facial expression of disgust, in the jury's presence, upon being compelled to reveal the name of an undercover officer. Defendant's claim that the court should have delivered a curative instruction is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the officer's reaction was directed at counsel and was unlikely to have caused defendant any prejudice, and did not rise to the level of emotional outburst for which curative instructions are required (see, People v. Butler, 214 A.D.2d 1014,lv denied 86 N.Y.2d 791).
We perceive no abuse of sentencing discretion.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.