PEOPLE v. FREEMAN

The verdict convicting defendant of criminal possession of a controlled substance under a theory of possession with intent to sell (Penal Law § 220.16) was not against the weight of the evidence. Defendant's principal argument is that because of the failure to convict on the sale counts, this Court, in evaluating the weight of the evidence supporting the element of intent to sell, should disregard evidence that the police observed him making three drug sales to apprehended buyers. Although we may consider the action of the jury on other counts in performing weight of evidence review (see People v. Rayam, 94 N.Y.2d 557, 563 n), in this case we find that the jury properly evaluated the evidence of possession with intent to sell. We decline "to intrude into the jury's deliberative process . . . The problems of second-guessing are compounded by the possibility that the jury has not necessarily acted irrationally, but instead has exercised mercy." (People v. Tucker, 55 N.Y.2d 1, 7 [citations omitted]). As the Court of Appeals held in Rayam, the Tucker rationale applies equally to legal repugnancy inquiry and weight of the evidence review ( 94 N.Y.2d at 562). "[I]n performing its de novo review function as a Othirteenth juror,' there is no good reason why a court should resolve any inconsistency in favor of a defendant rather than the People" (id.). Accordingly, we conclude that the evidence, including the three sales observed by the police, clearly establishes that the additional glassine envelopes of heroin, bearing the same brand name as those recovered from the three buyers, were possessed by defendant with intent to sell.

By failing to object, or by making a generalized objection, defendant failed to preserve his challenges to the People's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged portions of the summation did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.