People v. Blak

Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered September 4, 2002, 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 [302] or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed. The court properly denied defendant’s suppression motion. The undercover officers’ radioed descriptions were sufficiently specific, when taken together with the relevant temporal and spatial factors, to establish reasonable suspicion to stop and detain defendant for a confirmatory showup (see People v Haulsey, 298 AD2d 129 [2002], lv denied 99 NY2d 582 [2003]). The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). Issues of identification, including the weight to be given to discrepancies in the officers’ descriptions of defendant, were properly considered by the jury and there is no basis for disturbing its determinations. Defendant expressly waived his claim that the court should have discharged an allegedly unfit deliberating juror and declared a mistrial (see People v Lee, 92 NY2d 987 [1998]). When defendant, after consulting with his attorney, personally made the decision to forgo a mistrial, a strategic decision of a type normally made by counsel, this did not constitute self-representation requiring the court to warn him of the risks of proceeding pro se (People v Spiers, 300 AD2d 1033 [2002], lv denied 99 NY2d 620 [2003]). We note that the juror’s remarks that called her impartiality into question were favorable to defendant and suggested that she was leaning, at that point in deliberations, toward acquittal. 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., Saxe, Ellerin and Lerner, JJ.