Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered February 6, 2008, 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 to concurrent terms of 2 years, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Saxe, Catterson, Freedman, Abdus-Salaam, JJ.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). There is no basis for disturbing the jury's determinations concerning credibility. We do not find the undercover officer's account of the sale to be so implausible as to compel this Court, in its role as "thirteenth juror" (id. at 348), to reject it in favor of defendant's testimony.
Defendant did not preserve his challenge to the court's response to a deadlock note from the jury, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The instruction was not coercive in any way (see People v Ford, 78 NY2d 878 ), and it essentially told the jurors to maintain their conscientiously held beliefs, even if it omitted that precise formulation. Since the instruction was not constitutionally deficient, the absence of any objection by trial counsel did not deprive defendant of effective assistance.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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