Opinion
December 16, 1999
Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered May 5, 1997, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him to a term of 2 to 6 years, unanimously affirmed.
Jon Veiga for Respondent.
Robin Nichinsky for Defendant-Appellant.
ELLERIN, P.J., TOM, RUBIN, ANDRIAS, BUCKLEY, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. We see no reason to disturb the jury's determinations concerning credibility. There was ample evidence of constructive possession, including evidence from which a "reasonable jury could conclude that only trusted members of the [drug] operation would be permitted to enter" (People v. Bundy, 90 N.Y.2d 918, 920) the apartment in question, which was being used exclusively as a drug factory. The evidence likewise supported defendant's guilt under the "room presumption" theory. The court properly submitted that presumption to the jury since the drugs and paraphernalia were in "open view", and since defendant was in "close proximity" to them, especially given the small size of the apartment ( Penal Law § 220.25[2]; People v. Daniels, 37 N.Y.2d 624; Matter of Nina J., 246 A.D.2d 495).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.