| People v Gortspujuls |
| 2007 NY Slip Op 07477 [44 AD3d 368] |
| October 9, 2007 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v EdgarGortspujuls, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Elizabeth Squires of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered January21, 2004, as amended September 28, 2005, convicting defendant, after a jury trial, of criminalsale of a controlled substance in the first degree and criminal possession of a controlled substancein the first and third degrees, and sentencing him to concurrent terms of 11½ years for thesale and first-degree possession convictions, concurrent with a term of 8
Defendant's only preserved challenge to the court's evidentiary rulings is his argument thatthe cash recovered from his person was irrelevant because it had no connection with the chargedtransaction. While we agree that the money was irrelevant, we find the error to be harmless(see e.g. People v Gilbert, 7AD3d 286 [2004], lv denied 3 NY3d 659 [2004]). Defendant's other evidentiaryclaims are unpreserved and we decline to review them in the interest of justice. Were we toreview them, we would reject them.
Defendant's challenges to the court's charge are likewise unpreserved, and we decline toreview them in the interest of justice. Were we to review them, we would find no basis forreversal. Although the court made inappropriate departures from standard instructions, includingthe use of language that we disapproved in People v Johnson (11 AD3d 224 [2004]), the charge was notconstitutionally deficient. The court used language about a numerical majority solely toemphasize that the verdict had to be unanimous, and this was a completely different context fromthe one in which the same court erroneously used such language in Johnson. Here, thereis no reason to believe the jury could have been misled into believing that the People's burdenwas anything less than proof beyond a reasonable doubt. The court's instruction about a juror'schange of mind during deliberations does not warrant reversal (see People vAntommarchi, 80 NY2d 247, 251 [1992]).
The convictions for possession and sale stem from the same transaction, and we exercise ourdiscretion to dismiss the noninclusory concurrent possession counts (see e.g. People v[*2]Lopez, 288 AD2d 118, 120 [2001], affd 99 NY2d76 [2002]).
Pursuant to the 2004 Drug Law Reform Act, the court reduced defendant's original sentenceof 15 years to life on the sale conviction to 11½ years, and we perceive no basis for afurther reduction. Concur—Lippman, P.J., Tom, Marlow, Gonzalez and Malone, JJ.