PEOPLE v. LEWIS (2000)

 The conviction of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal sale of a controlled substance in the seventh degree (Penal Law § 220.03) is supported by legally sufficient evidence, and the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Because defendant did not move to dismiss the indictment at the close of the prosecutor's opening statement, his contention that the statement was insufficient has not been preserved for our review (see, CPL 470.05[2] ).   In any event, “[t]he well-settled rule in criminal jury cases * * * is that a trial court may not dismiss after opening unless it shall appear from the statement that the charge cannot be sustained under any view of the evidence and it may dismiss then only after the prosecutor has been given an opportunity to correct any deficiency (see, People v. Kurtz, 51 N.Y.2d 380, 385, 434 N.Y.S.2d 200, 414 N.E.2d 699)” (Matter of Timothy L., 71 N.Y.2d 835, 837-838, 527 N.Y.S.2d 734, 522 N.E.2d 1032).   Defendant's contention that there were two sales charged in a single count and thus that the count is duplicitous pursuant to People v. Keindl, 68 N.Y.2d 410, 417-418, 509 N.Y.S.2d 790, 502 N.E.2d 577, rearg. denied 69 N.Y.2d 823, 513 N.Y.S.2d 1028, 506 N.E.2d 539 lacks merit.   There was a single sale of six bags of cocaine for a single price.   We have reviewed defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: