PEOPLE v. JOHNSON (2003)

Judgment, Supreme Court, New York County (Marcy Kahn, J.), rendered April 30, 2002, 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 4 1/212 to 9 years, unanimously affirmed.

The verdict was not against the weight of the evidence.   Issues of credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury and there is no basis for disturbing its determinations (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).

 The court properly exercised its discretion in permitting the prosecution to elicit testimony that the choice of location for the undercover operation was influenced by community complaints (see e.g. People v. Washington, 259 A.D.2d 365, 688 N.Y.S.2d 125, lv. denied 93 N.Y.2d 1006, 695 N.Y.S.2d 753, 717 N.E.2d 1090). This background testimony was relevant to explain the police presence and to dispel any unfair jury speculation as to why the neighborhood in question was targeted.   The court's careful limiting instruction prevented any prejudice to defendant.

Defendant's general objections did not preserve his other challenges to police testimony (People v. Tevaha, 84 N.Y.2d 879, 620 N.Y.S.2d 786, 644 N.E.2d 1342), and we decline to review them in the interest of justice.   Were we to review these claims, we would find no basis for reversal (see People v. Kelsey, 194 A.D.2d 248, 606 N.Y.S.2d 621).

 The court properly exercised its discretion in denying defendant's mistrial motion based on an objectionable remark made by the prosecutor in summation, since the court's curative instruction was sufficient to prevent any prejudice (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668).

We decline to invoke our interest of justice jurisdiction to dismiss the non-inclusory concurrent count (see People v. Spence, 290 A.D.2d 223, 735 N.Y.S.2d 756, lv. denied 98 N.Y.2d 641, 744 N.Y.S.2d 770, 771 N.E.2d 843;  People v. Kulakov, 278 A.D.2d 519, 716 N.Y.S.2d 824, lv. denied 96 N.Y.2d 785, 725 N.Y.S.2d 649, 749 N.E.2d 218).