People v. Rivera

2019 NY Slip Op 356

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 2019
• Docket: 3527/15 8129 2445/16 8128
• Status: Published

Opinion

People v Rivera (2019 NY Slip Op 00356)

People v Rivera

2019 NY Slip Op 00356

Decided on January 17, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 17, 2019
Renwick, J.P., Manzanet-Daniels, Gische, Mazzarelli, Kahn, JJ.

3527/15 8129 2445/16 8128

[*1]The People of the State of New York, Respondent,

v

Jose Rivera, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Scott H. Henney of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J. at suppression hearing; Arlene D. Goldberg, J. at jury trial and sentencing), rendered September 13, 2016, as amended September 22, 2016, convicting defendant of criminal possession of a controlled substance in the fourth and fifth degrees, and sentencing him to concurrent terms of one year, unanimously affirmed.

The court properly denied defendant's suppression motion. The hearing court saw and heard the witnesses, and there is no basis for disturbing its credibility determinations (see People v Prochilo, 41 NY2d 759, 761 [1977]), including those relating to police observations of a passenger in the car, rolling what appeared to be a blunt cigarette, which provided the basis for stopping the car occupied by defendant.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. The evidence supports a finding that defendant was a knowing possessor of the drugs found in the car, both under the automobile presumption (Penal Law § 220.25[1]) and the theory of constructive possession.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 17, 2019

CLERK