People v. Perry , 759 N.Y.S.2d 320 ( 2003 )

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered December 21, 2000, 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 JVa to 9 years, unanimously affirmed.

While the prosecutor’s extensive questioning of defendant about drugs violated the trial court’s Sandoval ruling, the error was harmless (see People v Ayala, 75 NY2d 422, 431 [1990]).

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 NY2d 76 [2002]), 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 US 359, 366-369 [1983]). We decline to invoke our interest of justice jurisdiction to dismiss the noninclusory concurrent count (see People v Spence, 290 AD2d 223 [2002], lv denied 98 NY2d 641 [2002]; People v Kulakov, 278 AD2d 519 [2000], lv denied 96 NY2d 785 [2001]). Concur — Tom, J.P., Mazzarelli, Rosenberger, Ellerin and Williams, JJ.