The People of the State of New York, Respondent, v. Avial Peguero, Defendant–Appellant.

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

The People of the State of New York, Respondent, v. Avial Peguero, Defendant–Appellant.

5813

Decided: October 25, 2011

Tom, J.P., Saxe, Moskowitz, DeGrasse, Abdus–Salaam, JJ. Steven Banks, The Legal Aid Society, New York (Martin M. Lucente of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Marc Weber of counsel), for respondent.

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Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered July 2, 2008, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fourth degrees, and sentencing him to an aggregate term of 11/212 years, unanimously affirmed.

The court properly exercised its discretion when it admitted expert testimony concerning circumstances that indicate an intent to sell drugs (see People v. Hicks, 2 NY3d 750 [2004] ).   Defendant did not preserve his claim that the expert improperly opined that defendant was a drug seller, and we decline to review it in the interest of justice.   As an alternative holding, we find that the testimony was within the scope permitted under Hicks, and that defendant was not prejudiced in any event.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK