People v. Smith

—Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered December 17, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4x/2 to 9 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Defendant’s conduct, which included initiating the drug transaction with the undercover officer and establishing the amount the officer was seeking, went far beyond identifying a possible supplier of drugs (see, People v Sealey, 240 AD2d 340, lv denied 90 NY2d 943). We see no reason to disturb the jury’s determinations concerning credibility.

Contrary to defendant’s argument, the challenged portions of the People’s summation were entirely proper and did not impinge on defendant’s right to remain silent, in that they focused entirely on defendant’s conduct and statements during the sale itself.

Defendant’s claims concerning the propriety of the court’s amended charge are unpreserved for appellate review since his objection was on grounds other than those raised on appeal, and we decline to review them in the interest of justice. Were we to review these claims, we would find that the amended charge neither constructively amended the indictment nor rendered it duplicitous (see, People v Charles, 61 NY2d 321, 326-328; see also, People v Treuber, 64 NY2d 817). The modification of the charge was made following an inquiry by the jury, after providing counsel with an adequate opportunity to object. Concur — Ellerin, J. P., Wallach, Lerner, Rubin and Buckley, JJ.