Opinion
February 18, 1993
Appeal from the Supreme Court, New York County (James Leff, J.).
Following a buy and bust operation, the defendant and codefendant were arrested for selling two $10 bags of heroin. Before the defendant's trial commenced, the trial court inquired of him whether he would accept a plea bargain sentence. After defendant refused to plead, defense counsel informed the court he and the defendant were ready for trial and the trial court refused the defendant's subsequent request for an adjournment to think over the plea. A subsequent request for an adjournment to locate missing witnesses was also denied. The court also refused to charge the jury on the lesser included offense of criminal possession of a controlled substance in the seventh degree. We reject defendant's claims that the trial court erred in refusing an adjournment and the requested charge and also decline to disturb the sentence.
The defendant waited until the eve of trial to request an adjournment to locate missing witnesses and also failed to show that their testimony would be material and that the witnesses could be located (see, People v Singleton, 41 N.Y.2d 402). Moreover, since the defendant failed to raise the present sentencing claim before Supreme Court, it is unpreserved (People v Lemon, 62 N.Y.2d 745). Nor is reversal warranted in the interest of justice. In view of defendant's prior record, the sentence imposed was not excessive (see, People v Junco, 43 A.D.2d 266, affd 35 N.Y.2d 419, cert denied 421 U.S. 951) or punishment for going to trial. Lastly, no reasonable view of the evidence supports the defendant's contention that he merely possessed the drugs without the intent to sell (see, People v Fagairo, 178 A.D.2d 262).
Concur — Murphy, P.J., Carro, Kupferman, Asch and Kassal, JJ.