PEOPLE v. ITCHIER (2003)

Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered January 28, 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 5 to 10 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).   There is no basis for disturbing the jury's determinations concerning credibility.   The totality of the evidence, including the fact that defendant initiated contact with the undercover officer, warranted the conclusion that defendant participated in the drug sale and did not merely supply general information as to where drugs could be obtained (see People v. Bello, 92 N.Y.2d 523, 683 N.Y.S.2d 168, 705 N.E.2d 1209).

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).