Opinion
January 8, 1998
Appeal from the Supreme Court, New York County (Martin Rettinger, J.).
Defendant has not preserved his claim that the reading into evidence of his Grand Jury testimony, wherein he admitted criminal liability as a principal, constituted a constructive amendment of the indictment, which charged defendant with acting in concert ( see, People v. Duncan, 46 N.Y.2d 74, 79-80, cert denied 442 U.S. 910), and we decline to review it in the interest of justice. Were we to review it, we would find it to be without merit because there is no distinction between these two forms of liability for purposes of indictment ( People v. Rivera, 84 N.Y.2d 766; People v. Duncan, supra). Moreover, defendant's claim of surprise is without merit because the evidence supporting the alternative theory of liability was supplied by defendant himself in his Grand Jury testimony ( see, People v. Spann, 56 N.Y.2d 469). Evidence of uncharged drug sales was properly admitted to show that defendant intended to sell the drugs he possessed under either or both theories of liability ( see, People v. Alvino, 71 N.Y.2d 233).
Concur — Rosenberger, J.P., Wallach, Rubin, Williams and Tom, JJ.