People v. Spence

182 A.D.2d 845

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 1992
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Friedmann, J.), rendered October 13, 1989, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that expert testimony that the vials seized upon his arrest contained cocaine was inadmissible because there was no independent evidence that the expert made use of comparative samples which constituted a reliable norm (see, People v Miller, 57 AD2d 668). However, this claim has not been preserved for appellate review (see, CPL 470.05 [ 2]; see also, People v De La Rosa, 162 AD2d 698). In any event, the expert’s opinion that the vials contained cocaine was premised on tests which did not involve comparisons to a known standard. His testimony was thus admissible (People v De La Rosa, supra; People v Wicks, 122 AD2d 239), and it was for the jury to assess the weight to give his opinion (see, People v Corchado, 166 AD2d 279; People v De La Rosa, supra; People v Flores, 138 AD2d 512, 513).

The defendant’s contention that he was deprived of a fair trial because of certain comments made by the prosecutor during summation is similarly unavailing. This claim is unpreserved for appellate review (see, CPL 470.05 [2]) and we note in any event that the comments constituted fair response to defense counsel’s summation (see, People v Lee, 167 AD2d 354, 355). We have considered the defendant’s remaining contentions, including those raised in his supplemental pro se brief, and find them to be either without merit or to concern matters outside the record. Harwood, J. P., Balletta, Rosenblatt and Santucci, JJ., concur.