151 A.D.2d 606 | N.Y. App. Div. | 1989
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Fisher, J.), rendered January 20, 1987, convicting him of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was found near a room containing approximately 10 Vz ounces of cocaine, some of which were packaged in vials and in plain view. Also present in the room were
At this nonjury trial, the court found the defendant guilty of criminal possession of a controlled substance in the third degree under the second count of the indictment charging possession with intent to sell (Penal Law § 220.16 [1]), rather than based on the weight of the cocaine which was seized.
The trial court was correct in applying the statutory presumption of possession pursuant to Penal Law § 220.25 (2), as the defendant was in close proximity to the cocaine and there was sufficient evidence that the substance was being packaged for future distribution and sale (see, People v Daniels, 37 NY2d 624; People v Massene, 137 AD2d 624; People v McCall, 137 AD2d 561; People v Chandler, 121 AD2d 644; People v Hylton, 125 AD2d 409). Applying this presumption of possession, which was not rebutted, we find the evidence was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see, People v Shakes, 150 AD2d 401). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
We have considered the defendant’s remaining contention as to the admissibility of the cocaine and find it to be without merit. Mangano, J. P., Thompson, Sullivan and Balletta, JJ., concur.
