People v. Lopez

157 A.D.2d 527, 549 N.Y.S.2d 718, 1990 N.Y. App. Div. LEXIS 295

Opinion

—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered January 6, 1988, convicting defendant of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [12]), and sentencing him as a second felony offender to a term of incarceration of 4 Vi to 9 years, is unanimously affirmed.

Viewing the evidence in a light most favorable to the People, defendant’s guilt was proven beyond a reasonable doubt. The evidence was sufficient to demonstrate that defendant constructively possessed the cocaine under the statutory presumption of Penal Law § 220.25 (2). The charge on reasonable doubt, constructive possession, and the statutory presumption of possession gave the jury the proper standard with which to evaluate the evidence. Failure to provide a "moral certainty” charge was not reversible error (People v Gonzalez, 54 NY2d 729 [1981]; People v Pratt, 153 AD2d 867 [2d Dept 1989]). Defendant’s challenge to cross-examination of himself was not preserved, as a matter of law, by specific objection (CPL 470.05 [2]). We decline to review in the interest of justice. Police expert testimony which established the element of intent to sell (Penal Law § 220.25 [2]) was not error, and it cannot be said that the court abused its discretionary control over cross-examination as a matter of law (see, People v Duncan, 46 NY2d 74, 80 [1978], cert denied 442 US 910 [1979]). Finally, defendant was not, on the record before us, so deprived of meaningful representation as to have been denied effective assistance of counsel (Strickland v Washington, 466 US 668, 694 [1984]; People v Baldi, 54 NY2d 137 [1981]; People v De La Hoz, 131 AD2d 154 [1st Dept 1987]). It would be more appropriate for the defendant to pursue the relief afforded by CPL 440.10, if he be so advised. Concur—Kupferman, J. P., Ross, Milonas, Rosenberger and Ellerin, JJ.