185 A.D.2d 365 | N.Y. App. Div. | 1992
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kramer, J.), rendered June 14, 1990, convicting him of criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree (four counts), criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was arrested pursuant to a so-called "buy and bust” operation after selling four vials of cocaine to an undercover officer, from a plexiglass-enclosed counter inside a grocery store. After the undercover officer purchased the vials, he radioed to a field team a description of the seller, as well as the location of the purchase. When the members of the field team arrived at the bodega, they observed the defendant, who matched the description of the seller given by the undercover officer, behind a counter enclosed by plexiglass. The officers broke through the plexiglass encasement, where they recovered 200 vials underneath a makeshift platform on which the defendant was standing, 12 vials on the cash register, 14 vials in a box of straws on the counter, 61 vials in a bag between the radiator and the counter, and a bag of marihuana found inside the cash register. The police also found $254 in small bills on the defendant’s person. The contents of the vials were later examined by a police chemist, and found to contain cocaine.
Similarly without merit is the defendant’s contention that the court committed reversible error when it denied his request for a circumstantial evidence charge. A circumstantial evidence charge is unwarranted where, as here, both direct and circumstantial evidence are employed (see, People v Barnes, 50 NY2d 375; People v Guzman, 168 AD2d 792). The court’s charge correctly defined "constructive possession” (see, 1 CJI[NY] 9.70, at 543-545), and 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 recovered vials of crack cocaine (see, People v Lopez, 157 AD2d 527, 528; People v Pratt, 153 AD2d 867). Balletta, J. P., Rosenblatt, Miller and Pizzuto, JJ., concur.