People v. Jones , 759 N.Y.S.2d 864 ( 2003 )

—Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered April 11, 2001, 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 unlawful possession of a radio device, and sentencing him, as a second felony offender, to an aggregate term of 5V2 to 11 years, unanimously affirmed.

The court properly denied defendant’s request for a circumstantial evidence charge. “Eyewitness testimony * * * established that defendant engaged in acts which directly proved that at the very least he acted as a lookout while the crime was being committed” (People v Roldan, 88 NY2d 826, 827 [1996]; see also People v Daddona, 81 NY2d 990 [1993]).

The court properly exercised its discretion in permitting the “ghost” officer to testify, based on her experience, as to the meaning of certain gestures (see People v Stewart, 279 AD2d 335 [2001]). With regard to the other portion of this officer’s testimony challenged by defendant, the officer was simply using a descriptive phrase and was not expressing an improper lay opinion (see People v Dax, 233 AD2d 177 [1996], lv denied sub nom. People v Hogue, 89 NY2d 986 [1997]).

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]).

We perceive no basis for reducing the sentence. Concur— Nardelli, J.P., Tom, Andrias and Lerner, JJ.