People v. Gibbs

305 A.D.2d 230, 758 N.Y.S.2d 493, 2003 N.Y. App. Div. LEXIS 5556

Opinion

Judgment, Supreme Court, New York County (Ira Beal, J.), rendered May 9, 2001, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fifth degrees, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, 5 to 10 years and 2 to 4 years, respectively, unanimously affirmed.

Defendant did not preserve his challenge to the court’s remarks made in response to concerns raised by prospective jurors about the sentencing laws in narcotics cases, and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court’s statements could not have caused any prejudice in view of the court’s thorough instruction, which the jury is presumed to have followed (see People v Davis, 58 NY2d 1102 [1983]), that sentencing is not the jury’s concern.

The evidentiary rulings challenged by defendant on appeal were appropriate exercises of discretion. Defendant’s various claims of prosecutorial misconduct in cross-examination and summation, and of alleged deficiencies in the court’s jury instructions, are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find no basis for reversal. Concur — Nardelli, J.P., Mazzarelli, Wallach, Friedman and Marlow, JJ.