People v. Plant

Judgment affirmed. All concur, Callahan, J., not participating. Memorandum: Circumstantial evidence of defendant’s constructive possession of heroin was legally sufficient to sustain his conviction for criminal possession of a controlled substance in the fourth degree (see, People v Torres, 68 NY2d 677; People v Diaz, 41 AD2d 382, affd 34 NY2d 689). The claimed instances of prosecutorial misconduct were not so egregious that defendant was deprived of a fair trial (People v Roopchand, 107 AD2d 35, affd 65 NY2d 837). In our view, the prosecutor’s characterization of certain factual circumstances during summation was fairly inferable from the evidence, and as to other claimed improprieties, the court gave effective curative instructions which erased any potential prejudice to defendant. Moreover, proof of guilt was overwhelming, and any error was harmless (People v Morgan, 66 NY2d 255, cert denied 476 US 1120). The remaining issue was not preserved for our review (CPL 470.05 [2]; People v Lipton, 54 NY2d 340), and in any event, it lacks merit. (Appeal from judgment of Supreme Court, Erie County, Marshall, J.—criminal possession of controlled substance, fourth degree, and another charge.) Present—Dillon, P. J., Callahan, Boomer, Balio and Davis, JJ.