People v. Miller

306 A.D.2d 16, 759 N.Y.S.2d 658, 2003 N.Y. App. Div. LEXIS 6177

Opinion

—Judgment, Supreme Court, New York County (Ira Beal, J.), rendered July 24, 2001, 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 5 to 10 years, unanimously affirmed.

Viewed as a whole, the court’s instructions on accessorial liability conveyed the correct legal standards (see People v Crayton, 278 AD2d 64 [2000], lv denied 96 NY2d 782 [2001]). The court also meaningfully responded to a jury note on the subject by repeating its original instructions (People v Malloy, 55 NY2d 296 [1982]).

The challenged portions of the prosecutor’s summation constituted fair comment on the evidence in response to defense arguments and there was no pattern of egregious misconduct (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

We decline to invoke our interest of justice jurisdiction to dismiss the noninclusory concurrent count (see People v Spence, 290 AD2d 223 [2002], lv denied 98 NY2d 641 [2002]; People v Kulakov, 278 AD2d 519 [2000], lv denied 96 NY2d 785 [2001]). Concur — Tom, J.P., Mazzarelli, Andrias, Friedman and Marlow, JJ.