Opinion
5813.
Decided on October 25, 2011.
Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered July 2, 2008, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fourth degrees, and sentencing him to an aggregate term of 1½ years, unanimously affirmed.
Steven Banks, The Legal Aid Society, New York (Martin M. Lucente of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Marc Weber of counsel), for respondent.
Tom, J.P., Saxe, Moskowitz, DeGrasse, Abdus-Salaam, JJ.
The court properly exercised its discretion when it admitted expert testimony concerning circumstances that indicate an intent to sell drugs ( see People v Hicks , 2 NY3d 750 ). Defendant did not preserve his claim that the expert improperly opined that defendant was a drug seller, and we decline to review it in the interest of justice. As an alternative holding, we find that the testimony was within the scope permitted under Hicks, and that defendant was not prejudiced in any event.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.