Opinion
April 20, 2000.
Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered February 6, 1997, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.
Daniel R. Wanderman, for respondent.
Omid Zareh, for defendant-appellant.
ROSENBERGER, J.P., WILLIAMS, RUBIN, SAXE, BUCKLEY, JJ.
The court properly exercised its discretion in setting appropriate guidelines for voir dire of prospective jurors (see, People v. Boulware, 29 N.Y.2d 135, cert denied 405 U.S. 995). These guidelines clearly permitted inquiry into whether the jurors would follow the court's instruction not to draw an adverse inference in the event that defendant did not testify.
Defendant failed to preserve his claim that the count upon which he was convicted was duplicitous in that it charged possession of both heroin and cocaine. Although defendant's argument is cast as a claim of unconstitutional lack of notice and failure to identify the crime for unanimity and double jeopardy purposes, we see no reason to exempt this claim from normal preservation requirements (see, People v. Iannone, 45 N.Y.2d 589; People v. Udzinski, 146 A.D.2d 245,lv denied 74 N.Y.2d 853), and we decline to review this claim in the interest of justice. Were we to review it, we would find that this count properly aggregated all the drugs simultaneously found in defendant's constructive possession (see, People v. Martin, 153 A.D.2d 807, lv denied 74 N.Y.2d 950) and did not deprive defendant of any constitutional right (see, People v. Charles, 61 N.Y.2d 321, 327).
The court properly denied defendant's request for a missing witness charge regarding the police chemist who originally tested the drugs. The totality of the record clearly establishes that the chemist was unavailable due to illness.
The People established a suitable chain of custody for the drugs (see, People v. Julian, 41 N.Y.2d 340).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.