Opinion
1049
May 6, 2003.
Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered November 29, 2001, convicting defendant, after a nonjury trial, of criminal possession of a controlled substance in the third and fourth degrees, criminally using drug paraphernalia in the second degree (three counts) and resisting arrest, and sentencing him to an aggregate term of 3 to 10 years, unanimously affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).
Walter J. Storey, for respondent.
Noah Lipman, for defendant-appellant.
Before: Buckley, P.J., Nardelli, Mazzarelli, Sullivan, Gonzalez, JJ.
The court properly precluded defendant from introducing a statement made by a codefendant as a purported declaration against penal interest. There were no supporting circumstances to attest to the statement's reliability ( see People v. Settles, 46 N.Y.2d 154, 167-170).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence warranted the inference of defendant's guilt under the theory of constructive possession ( see People v. Bundy, 90 N.Y.2d 918; People v. Abreu, 261 A.D.2d 297, lv denied 93 N.Y.2d 1013) and under the drug factory presumption (see Penal Law § 220.25).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.