PEOPLE v. SMITH (2003)

Judgment, Supreme Court, New York County (Dora Irizarry, J.), rendered March 1, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 7 1/212 to 15 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentences to concurrent terms of 5 to 10 years, and otherwise affirmed.

 By consenting to the substitution of an alternate for a sick juror, defendant waived any argument that the substitution was improper (see People v. Ortiz, 92 N.Y.2d 955, 683 N.Y.S.2d 158, 705 N.E.2d 1199).   The court did not impermissibly delegate its duty to “make a reasonably thorough inquiry” under CPL 270.35(2)(a) by relying, without objection, on information relayed by a court officer and a court clerk that the juror was ill with the flu, was going to the doctor, and did not feel well enough to go to court the following day (see People v. Harris, 204 A.D.2d 240, 612 N.Y.S.2d 157, lv. denied 84 N.Y.2d 826, 617 N.Y.S.2d 146, 641 N.E.2d 167;  People v. Bruno, 295 A.D.2d 228, 229, 744 N.Y.S.2d 127, lv. denied 99 N.Y.2d 533, 752 N.Y.S.2d 594, 782 N.E.2d 572).

 Although testimony about similar drug sales that did not involve defendant should have been excluded, such testimony did not deprive defendant of a fair trial.   This brief and limited testimony did not suggest large-scale drug activity and was not unduly prejudicial (see People v. Campbell, 255 A.D.2d 221, 679 N.Y.S.2d 821, lv. denied 92 N.Y.2d 1029, 684 N.Y.S.2d 494, 707 N.E.2d 449).

 Defendant's double jeopardy claim concerning his conviction of both criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree is unpreserved (People v. Gonzalez, 99 N.Y.2d 76, 751 N.Y.S.2d 830, 781 N.E.2d 894), and we decline to review it in the interest of justice.   Were we to review this claim, we would find no violation of the prohibition against double jeopardy (see Missouri v. Hunter, 459 U.S. 359, 366-369, 103 S.Ct. 673, 74 L.Ed.2d 535).   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).

We find the sentences excessive to the extent indicated.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.