People v. Bernabel , 749 N.Y.S.2d 521 ( 2002 )

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered November 24, 1999, 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 to concurrent terms of 2 to 6 years and 1 to 3 years, respectively, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of identification and credibility, including the question of defendant’s opportunity to separate himself from prerecorded buy money and additional drugs, were properly considered by the jury and there is no basis for disturbing its determinations (see People v Gaimari, 176 NY 84, 94). We note that defendant — arrested moments after the crime and standing alone at the crime scene — matched a very specific description provided by the undercover officer.

The fact that defendant was convicted of both criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree does not violate the prohibition against double jeopardy (see Missouri v Hunter, 459 US 359, 368-369). We decline to invoke our interest of justice jurisdiction to dismiss the noninclusory concurrent count (see People v Spence, 290 AD2d 223, lv denied 98 NY2d 641; People v Kulakov, 278 AD2d 519, lv denied 96 NY2d 785). Concur — Nardelli, J.P., Mazzarelli, Saxe and Marlow, JJ.