
    The People of the State of New York, Respondent, v Whis Patterson, Appellant.
    [642 NYS2d 239]
   Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered May 25, 1994, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent prison terms of 5 to 10 years and 1 year, respectively, unanimously affirmed.

Defendant’s contention that he was deprived of a fair trial by the trial court’s failure to submit criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal possession of a controlled substance in the third degree was waived (CPL 300.50 [1]). Were we to consider this claim, we would find it to be without merit. Defendant has shown no prejudice since the record indicates that the jury, although mistakenly, did in fact deliberate as though the trial court had submitted the lesser included charge with respect to the third-degree count.

We find that defendant opened the door to the testimony by an expert on street level drug trade which defendant now challenges. Concur — Murphy, P. J., Wallach, Ross, Nardelli and Williams, JJ.  