PEOPLE v. HICKS (2003)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered September 11, 2000, convicting him of criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 After the defendant was arrested in connection with a buy-and-bust operation, the police recovered 14 glassine envelopes containing heroin from his person.   The defendant contends that expert testimony offered by the People at trial invaded the jury's exclusive province of determining an ultimate issue of fact.   We disagree.   The trial court properly allowed the detective, a qualified narcotics expert, to offer his opinion that the packaging of the heroin recovered from the defendant's person was not consistent with personal use (see People v. Tarver, 292 A.D.2d 110, 741 N.Y.S.2d 130, lv. denied 98 N.Y.2d 702, 747 N.Y.S.2d 421, 776 N.E.2d 10;  People v. Gallego, 155 A.D.2d 687, 548 N.Y.S.2d 62;  People v. Jones, 138 A.D.2d 405, 525 N.Y.S.2d 689).

 Since the detective did not express his opinion on the ultimate issue of the defendant's intent to sell, his testimony did not invade the province of the jury (see People v. Ray, 272 A.D.2d 203, 708 N.Y.S.2d 295;  People v. Polanco, 169 A.D.2d 551, 564 N.Y.S.2d 404;  cf.  People v. Goodwine, 177 A.D.2d 708, 709, 576 N.Y.S.2d 881).   Any prejudice to the defendant that may have arisen from the admission of testimony that the recovered heroin appeared to be “packaged for sale” was ameliorated by the trial court's striking of the testimony and issuance of prompt curative instructions to the jury (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668;  People v. Newby, 291 A.D.2d 460, 738 N.Y.S.2d 355).   The defendant's challenge to the adequacy of the trial court's curative instructions is unpreserved for appellate review as the defendant failed to object to the curative instructions or to request additional instructions (see CPL 470.05 [2];  People v. Santiago, supra;  People v. Vincent, 250 A.D.2d 787, 672 N.Y.S.2d 781;  People v. Reyes, 248 A.D.2d 412, 670 N.Y.S.2d 192).   In any event, any error was harmless in light of the overwhelming evidence of the defendant's guilt (see People v. Williams, 224 A.D.2d 725, 638 N.Y.S.2d 705;  People v. Hewitt, 220 A.D.2d 686, 633 N.Y.S.2d 58;  People v. Goodwine, supra;  see also People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).