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People v. Hushie

145 A.D.2d 506 Court N.Y. App. Div. Decision date 1988-12-29 English

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p. 506
The People of the State of New York, Respondent, v Devine Hushie, Appellant.

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Friedmann, J.), rendered February 6, 1987, convicting him of criminal sale of a controlled substance in the second degree and criminal sale of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that he was prosecuted twice for the same offense is without merit. At the time the court declared a mistrial as to one of the counts of the indictment no juror had been impaneled and sworn so the defendant had not been prosecuted for the offense (see, People v Hushie, 133 Misc 2d 696 , 697; CPL 40.30 [1]). Thus the defendant was not placed in double jeopardy when he was reindicted for the same offense (see, CPL 40.20 [1]).

p. 507
Also without merit is the defendant’s contention that the People’s expert witness’s testimony as to his opinion that the substance the defendant was charged with possessing was cocaine was not competent because that opinion was based upon the results of tests which used a known standard, the reliability of which had not been established (see, People v Branton, 67 AD2d 664 ; People v Miller, 57 AD2d 668 ). Although the expert did rely upon some tests which involved a comparison to known standards whose accuracy had not been established, his testimony that the substance at issue was cocaine was competent, as it was based upon a series of tests which did not all involve the use of known standards (see, People v Flores, 138 AD2d 512 , lv denied 72 NY2d 859 ; People v Jones, 134 AD2d 452 , lv denied 70 NY2d 956 ; People v Wicks, 122 AD2d 239 , lv denied 68 NY2d 1005 ). We note that at trial the defendant did not dispute the fact that the substance he was charged with possessing was cocaine.

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Mangano, J. P., Thompson, Brown and Kunzeman, JJ., concur. [See, 133 Mise 2d 696.]

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