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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Augustin FLORES, Defendant-Appellant.

Decided: January 06, 2005

TOM, J.P., ANDRIAS, SAXE, FRIEDMAN, GONZALEZ, JJ. Laura R. Johnson, The Legal Aid Society, New York (Cheryl Williams of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Kenneth A. Newby of counsel), for respondent.

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered December 12, 1994, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him to concurrent terms of 6 to 12 years, unanimously affirmed.

The court properly delivered a consciousness-of-guilt charge, since defendant's abandonment, at the approach of the police, of a paper bag later discovered to contain heroin, as well as his struggle with the police before being handcuffed, provided a sufficient evidentiary predicate for such a charge (see People v. Yazum, 13 N.Y.2d 302, 304, 246 N.Y.S.2d 626, 196 N.E.2d 263 [1963];  see also People v. Alexander, 37 N.Y.2d 202, 203, 371 N.Y.S.2d 876, 333 N.E.2d 157 [1975] ).   Any ambiguity in defendant's conduct was for the jury to consider.   Defendant's challenge to the language of the consciousness-of-guilt charge is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the charge conveyed the proper standards.

We perceive no basis for reducing the sentence.