People v. Garrett

13 A.D.3d 131, 785 N.Y.S.2d 687, 2004 N.Y. App. Div. LEXIS 15028

Opinion

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered November 20, 2002, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

The verdict was not against the weight of the evidence. The evidence warranted the conclusion that defendant was a participant in a drug-selling operation based in an apartment, and that he was one of the persons in constructive possession of the drugs stored in that apartment (see People v Bundy, 90 NY2d 918 [1997]). The evidence also established defendant’s guilt under the drug factory presumption (see Penal Law § 220.25 [2]). Contrary to defendant’s claims, the evidence satisfied the “open view” and “close proximity” requirements of the presumption. Concur—Nardelli, J.P., Mazzarelli, Sullivan, Friedman and Gonzalez, JJ.