Judgment affirmed, and case remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (5).
The defendant had no reasonable expectation of privacy in the public street area adjacent to his automobile (cf. People v Class, 63 N.Y.2d 491, revd on other grounds 475 US ___, 89 L Ed 2d 81). Thus, he lacks standing to challenge the constitutionality of the seizure by the police of the paper bag containing narcotics which was found in that area (see, People v Ponder, 54 N.Y.2d 160, 166; People v Collier, 107 A.D.2d 754). In any event, an examination of the record indicates that probable cause existed for the defendant's arrest. Moreover, the defendant's postarrest statement made by him during a telephone call which was overheard by the arresting officer who was not deliberately eavesdropping, was voluntary and spontaneous. Thus, even though this statement was apparently made prior to the defendant's being given Miranda warnings, it was plainly not the result of custodial interrogation and the hearing court properly declined to suppress it (see, People v Torres, 21 N.Y.2d 49; cf. People v Harris, 57 N.Y.2d 335, 341-342).
The defendant made no objection at trial to the court's instructions on "constructive possession". Thus, his present claim that the court's instructions were prejudicial and improper is not preserved for appellate review (CPL 470.05; People v Gonzales, 77 A.D.2d 654, affd 56 N.Y.2d 1001). In any event, this claim lacks merit. The court's charge correctly defined "constructive possession", and properly focused the jury's attention on the specific factual issues raised by the evidence with regard to whether the defendant had constructive possession of the narcotics seized by the police (see, People v Newman, 46 N.Y.2d 126, 130).
Finally, an appellate court may only overturn a conviction on the ground of insufficiency of the evidence if, upon viewing the evidence in the light most favorable to the prosecution, it concludes that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (People v Contes, 60 N.Y.2d 620, 621; People v Bigelow, 106 A.D.2d 448, 449). In this case, a rational trier of fact could have found the defendant guilty beyond a reasonable doubt on each of the counts of criminal possession of a controlled substance in the third degree. Brown, J.P., Weinstein, Niehoff and Spatt, JJ., concur.