Opinion
December 12, 1988
Appeal from the Supreme Court, Queens County (Friedmann, J.).
Ordered that the judgment is affirmed.
The defendant's contention that he was prosecuted twice for the same offense is without merit. At the time the court declared a mistrial as to one of the counts of the indictment no juror had been impaneled and sworn so the defendant had not been prosecuted for the offense (see, People v Hushie, 133 Misc.2d 696, 697; CPL 40.30). Thus the defendant was not placed in double jeopardy when he was reindicted for the same offense (see, CPL 40.20).
Also without merit is the defendant's contention that the People's expert witness's testimony as to his opinion that the substance the defendant was charged with possessing was cocaine was not competent because that opinion was based upon the results of tests which used a known standard, the reliability of which had not been established (see, People v Branton, 67 A.D.2d 664; People v Miller, 57 A.D.2d 668). Although the expert did rely upon some tests which involved a comparison to known standards whose accuracy had not been established, his testimony that the substance at issue was cocaine was competent, as it was based upon a series of tests which did not all involve the use of known standards (see, People v Flores, 138 A.D.2d 512, lv denied 72 N.Y.2d 859; People v Jones, 134 A.D.2d 452, lv denied 70 N.Y.2d 956; People v Wicks, 122 A.D.2d 239, lv denied 68 N.Y.2d 1005). We note that at trial the defendant did not dispute the fact that the substance he was charged with possessing was cocaine.
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Mangano, J.P., Thompson, Brown and Kunzeman, JJ., concur.