PEOPLE v. BRANCH (2009)

Judgment, Supreme Court, New York County (Michael A. Corriero, J.), rendered April 24, 2007, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal sale of a controlled substance in or near school grounds, and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to concurrent terms of 31/212 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the jury's determinations concerning credibility.   In this observation sale case, the totality of defendant's interactions with the codefendant and with the buyers supports the conclusion that defendant took part in the transaction as part of a team of drug dealers (see People v. Eduardo, 11 N.Y.3d 484, 493, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ), and that he was a joint possessor of the additional drugs found on the codefendant.

 To the extent that a summation remark by the prosecutor could be viewed as improperly implying that the jury should draw an inference of guilt from the fact that defendant had been indicted by a grand jury, we conclude that the court's instructions on the meaning of an indictment were sufficient to prevent any prejudice (see People v. James, 197 A.D.2d 429, 602 N.Y.S.2d 610 [1993], lv. denied 83 N.Y.2d 806, 611 N.Y.S.2d 142, 633 N.E.2d 497 [1994] ).   Defendant's remaining challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).