Opinion
June 27, 1995
Appeal from the Supreme Court, Bronx County (Lawrence Tonetti, J.).
Viewed in a light most favorable to the People ( People v Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932) the evidence of defendant's drug-induced state while sitting in a parked vehicle in which cocaine was found was legally sufficient to show defendant's constructive possession of the cocaine. Defendant's claim that the prosecution failed to establish his knowledge of the weight of the drugs found in the vehicle was not preserved by an appropriate objection ( People v. Gray, 86 N.Y.2d 11), and we decline to reach it in the interest of justice. Defendant's claim that the court improperly allowed the officers to testify that he suffered from cocaine psychosis was not preserved by objection to such testimony, or to the court's instructions on the relevance of such testimony. In any event, the reference to psychosis, even if error, was harmless, because one of the officers, who had made more than 50 narcotics arrests, testified that defendant exhibited behavior similar to other individuals under the influence of drugs ( cf., Richardson, Evidence § 366 [Prince 10th ed]). Defendant's claim that the court improperly denied his motion for a continuance is without merit, as he failed to serve subpoenas or make an effort to secure the witness's testimony ( People v. Villegas, 190 A.D.2d 593, lv denied 81 N.Y.2d 978). Finally, defendant's claim that the court improperly exceeded its Sandoval ruling by its own questioning of defendant is unpreserved for appellate review as there was no objection interposed to such questioning. Furthermore, even if we were to address the claim, we would find it to be without merit in view of defendant's misleading testimony on direct that he had had a life free of crime during a period of time that defendant was, in large part, incarcerated ( see, People v. Pagan, 201 A.D.2d 284, 285, lv denied 83 N.Y.2d 875).
Concur — Ellerin, J.P., Wallach, Kupferman, Ross and Mazzarelli, JJ.