People v. Torres

134 A.D.2d 633, 521 N.Y.S.2d 525, 1987 N.Y. App. Div. LEXIS 50847

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Finnegan, J.), rendered December 5, 1985, convicting him of criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

Upon review of the record of the defendant’s Mapp hearing, we find that the testimony of the arresting officer was neither incredible nor patently tailored to avoid constitutional requirements. Accordingly, the People met their burden of going forward with sufficient evidence to establish the legality of the police conduct, and the defendant failed to sustain his burden of proving that the evidence should not be used against him (see, People V Berrios, 28 NY2d 361, 367).

Neither the verdict sheet nor the portion of the jury charge concerning constructive possession was erroneous or rendered the trial unfair in any way; the verdict sheet complied in all respects with the requirements of CPL 310.20 (2), and the charge sufficed to convey to the jury the requirement that possession of a controlled substance, to be criminal, must be knowing possession.

Finally, we decline to modify the sentence imposed. Mollen, P. J., Rubin, Hooper and Sullivan, JJ., concur.