People v. Diakite

Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered August 7, 2001, 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 her, as a second felony offender, to concurrent terms of 4x/2 to 9 years, unanimously affirmed.

The verdict was not against the weight of the evidence. Issues of credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury and there is no basis for disturbing its determinations (see People v Gaimari, 176 NY 84, 94 [1903]).

The court properly exercised its discretion in denying defendant’s mistrial motion, made during jury selection after several prospective jurors complained about defendant’s latenesses for court. The court excused the complaining panelists, provided the remaining panelists with limiting instructions, and asked them as a group if they could be fair. The court also offered to question the prospective jurors individually, but defendant declined that offer. Accordingly, there was no basis for the drastic remedy of a mistrial (see People v Stuckey, 220 AD2d 223 [1995], lv denied 87 NY2d 977 [1996]). Concur—Mazzarelli, J.E, Saxe, Williams, Lerner and Marlow, JJ.