Opinion
May 22, 1995
Appeal from the Supreme Court, Kings County (Grajales, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly found that the police had probable cause to arrest the defendant. The hearing testimony reveals that, on the night of July 15, 1992, Police Officer Mark McCormick, an officer with more then five years of experience and who was familiar with narcotics, observed the defendant hand a small, white packet described as a glassine envelope to another man in exchange for some United States currency in a location where narcotics were known to be sold. When the defendant saw the officer and his partner exit their motor vehicle, he attempted to flee. Officer McCormick apprehended the defendant after a brief chase. Officer McCormick then arrested the defendant and recovered five packets of cocaine labeled "one way" from the defendant's pocket. Under the totality of the circumstances of this case, there was sufficient information to lead a reasonable person who possessed the same expertise as Officer McCormick to conclude that a crime was being committed (see, People v McCray, 51 N.Y.2d 594; People v McLeod, 161 A.D.2d 671; People v Zarzuela, 141 A.D.2d 788).
We do not agree with the defendant that an adverse inference charge was required due to the unavailability of a label that had been prepared by a chemist and that had been affixed to a sample of the cocaine that had been used for testing. The label was destroyed after the sample had been tested as part of the chemist's usual procedure following testing. We find that the possibility that the defendant was prejudiced by the loss is remote (see, People v Martinez, 71 N.Y.2d 937; People v Durant, 185 A.D.2d 822; People v Riviere, 173 A.D.2d 871). The defendant was able to cross-examine the chemists who had performed the tests about their findings, and the defendant's contention that he could have challenged the chain of custody if the label had been available is merely speculative.
The defendant has not preserved for appellate review his contention that the People failed to prove that he knew that the cocaine in his possession weighed 500 milligrams or more (see, People v Gray, 86 N.Y.2d 10; People v Hill, 85 N.Y.2d 256; People v Logan, 74 N.Y.2d 859; People v Okehoffurum, 201 A.D.2d 508). Balletta, J.P., O'Brien, Thompson and Hart, JJ., concur.