Opinion
June 9, 1995
Appeal from the Onondaga County Court, Burke, J.
Present — Denman, P.J., Green, Wesley, Doerr and Balio, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of criminal possession of a controlled substance in the third degree (Penal Law § 220.16) and criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06), defendant argues that the evidence is insufficient to prove that he knew that he possessed over 500 milligrams of pure cocaine. Defendant failed to preserve that issue for our review (see, People v. Gray, 86 N.Y.2d 10), and we decline to exercise our power to review that issue as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).
Defendant was afforded effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137). The testimony of the officer on redirect examination concerning a prior arrest of defendant was properly admitted because the defense had "open[ed] the door" to admission of that evidence (People v. Donato, 202 A.D.2d 1010, lv denied 83 N.Y.2d 871; see, People v. Brown, 176 A.D.2d 1232, lv denied 79 N.Y.2d 853).
The suppression court concluded that the arresting officer had a founded suspicion that defendant had committed a crime, sufficient to justify his stopping defendant, and that defendant was not in custody until the cocaine was discovered, at which time there was probable cause to arrest defendant. Those factual determinations are supported by the evidence and should not be disturbed (see, People v. Williams, 202 A.D.2d 976, lv denied 83 N.Y.2d 916). Finally, we decline to modify defendant's sentence as a matter of discretion in the interest of justice (see, CPL 470.15 [b]).