PEOPLE v. NIEVES (2002)

Judgment, Supreme Court, Bronx County (Cesar Cirigliano, J.), rendered September 18, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal sale of a controlled substance in or near school grounds and criminal possession of a controlled substance in the third degree, and sentencing him to three concurrent terms of 3 to 9 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   The evidence warranted the conclusion that, as part of their drug-selling enterprise, defendant and the codefendant jointly possessed the additional drugs found on the ground in a small brown paper bag (People v. Tirado, 38 N.Y.2d 955, 384 N.Y.S.2d 151, 348 N.E.2d 608;  People v. Dean, 200 A.D.2d 582, 606 N.Y.S.2d 290, lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 131, 635 N.E.2d 300).

 The non-prerecorded money recovered from defendant upon his arrest was properly admitted into evidence since it was relevant to the charge of possession with intent to sell (see, People v. Brooks, 234 A.D.2d 149, 652 N.Y.S.2d 1, lv. denied 89 N.Y.2d 1009, 658 N.Y.S.2d 247, 680 N.E.2d 621).   The comments made by the prosecutor concerning defendant's possession of the money were properly responsive to defense counsel's summation (see, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724).

 The court properly exercised its discretion in denying defendant's application for an adjournment to secure the presence of an alibi witness.   Defendant failed to demonstrate that good faith efforts were made to locate the witness or that the witness would be located and would appear following the adjournment (see, People v. Foy, 32 N.Y.2d 473, 478, 346 N.Y.S.2d 245, 299 N.E.2d 664).   Moreover, the testimony of such witness would have been cumulative since defendant called another alibi witness at trial who testified to the particular facts in issue.   Accordingly, there was no violation of defendant's right to present a defense.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.