Opinion
March 4, 1988
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Dillon, P.J., Callahan, Boomer, Balio and Davis, JJ.
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 N.Y.2d 677; People v Diaz, 41 A.D.2d 382, affd 34 N.Y.2d 689).
The claimed instances of prosecutorial misconduct were not so egregious that defendant was deprived of a fair trial (People v Roopchand, 107 A.D.2d 35, affd 65 N.Y.2d 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 N.Y.2d 255, cert denied 476 U.S. 1120).
The remaining issue was not preserved for our review (CPL 470.05; People v. Lipton, 54 N.Y.2d 340), and in any event, it lacks merit.