Two analogous cases are before the court for resolution.
The first case is an appeal made by the defendant from a judgment of the Supreme Court, Kings County, rendered 15 November 1990, convicting him of the drug crimes of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fourth degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.
The court affirms the judgment after the arrest,.
At the trial, the following facts were established:
An undercover officer moved toward the defendant, who was standing under the canopy of a grocery store, and the defendant asked “what do you want?” The officer asked if he had any “rock”, meaning cocaine, and the defendant replied, “yeah, just a minute” and walked inside the store. The defendant came out of the store with another man, ER, and they walked to the patio of a building down the block. ER opened a mailbox with a key, removed a brown bag and took out two vials of cocaine. ER then handed the two vials to the defendant, who gave them to the undercover officer in exchange for cash. Upon completion of the sale, the officer radioed the backup team, and the defendant was arrested outside the grocery store. ER was arrested at the same time inside the store. The police then returned to the vestibule and opened the mailbox with a key obtained from ER. Inside they found a brown bag with approximately 79 vials of cocaine.
On appeal, the defendant contends that the evidence was legally insufficient to support his conviction of criminal possession of a controlled substance in the fourth degree and one count of criminal possession of a controlled substance in the third degree in that there was no showing that he constructively possessed the 79 vials. Viewing the evidence in the light most favorable to the People as was established in People v. Contes, the court finds that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. The defendant was not merely present at the scene of the drug sale, but he initiated and participated in the sale of drugs from the cache. Thus, the evidence was legally sufficient to establish that the defendant had joint constructive possession with regard to the remaining vials as held People v. Holmes.
The court finds that the defendant’s contentions with regard to the prosecutor’s summation are either unpreserved for appellate review or without merit as in People v. Thomas.
The court has reviewed the defendant’s remaining contentions and finds it to be without merit.
The second case is an appeal made by the defendant from a judgment of the Supreme Court, Kings County, rendered 9 June 1993, convicting him of criminal possession of a controlled substance in the seventh degree (two counts), upon a jury verdict, and imposing sentence.
The court affirms the judgment.
The defendant in this case contends that the evidence against him is legally insufficient to prove that he knowingly possessed cocaine. The court disagrees. As part of a so-called buy-and-bust operation in an area of Brooklyn where drugs are known to be sold, Undercover Police Officer 3206 approached codefendant HR and asked him if he had any “pedico,” a slang term for cocaine. Rivera told the officer that he was waiting for some. Seconds later, the defendant appeared carrying a paper bag, which he gave to HR. HR and the officer walked several feet from the defendant. HR then took six aluminum-foil packets out of the paper bag and handed them to the officer. The officer paid Rivera with $30 of prerecorded money. The packets were later found to contain cocaine. Under these circumstances, the court finds that the evidence is legally sufficient to establish the defendant’s guilt of criminal possession of a controlled substance in the seventh degree beyond a reasonable doubt as was held in People v. Reisman.
It was not necessary for the trial court to specifically charge the jury that it might infer that the defendant knew he possessed a controlled substance from his possession thereof when it had already instructed the jury that it might draw proper, reasonable and just inferences from the testimony.
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