People v. Miller , 759 N.Y.S.2d 658 ( 2003 )

—Judgment, Supreme Court, New York County (Ira Beal, J.), rendered July 24, 2001, 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.

Viewed as a whole, the court’s instructions on accessorial liability conveyed the correct legal standards (see People v Crayton, 278 AD2d 64 [2000], lv denied 96 NY2d 782 [2001]). The court also meaningfully responded to a jury note on the subject by repeating its original instructions (People v Malloy, 55 NY2d 296 [1982]).

The challenged portions of the prosecutor’s summation constituted fair comment on the evidence in response to defense arguments and there was no pattern of egregious misconduct (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

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, Andrias, Friedman and Marlow, JJ.