Opinion
December 10, 1991
Appeal from the Supreme Court, Bronx County (Edward M. Davidowitz, J.).
Police, responding to a radio run, were given entry to a basement room of a residential building through the only door accessible from the street. Once inside, they were given entry to an adjoining room through a locked plywood door. In that room, police observed a glassine bag of cocaine in plain sight. When defendant entered from another adjoining room, he admitted that he resided there. The building superintendent testified that defendant was one of two persons who had keys to the basement. A search of the room from which defendant entered turned up large quantities of crack vials in several glassine bags, a block of cocaine, and numerous glassines of various sizes containing cocaine in powder form. Several of these glassines were on a plate, and a razor and a rolled-up dollar bill with cocaine residue were found on an adjoining plate. A loaded, operable, 380 automatic handgun was also found nearby.
Defendant's contention that it was error to instruct the jury on the drug factory presumption is without merit. Penal Law § 220.25 (2) allows for the presumption of knowing possession by every person in close proximity to controlled substances under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substances. Contrary to defendant's argument, the statutory presumption does not require that mixing or compounding paraphernalia be found on the premises. In view of the quantity and various stages of preparation of the drugs found dispersed around the room, there was sufficient evidence to satisfy the statutory requirement of an intent to package or otherwise prepare drugs for sale (see, People v McCall, 137 A.D.2d 561, lv denied 70 N.Y.2d 1008).
Nor was it error to deny defendant's application for a "moral certainty" charge. The charge on reasonable doubt, constructive possession, and the statutory presumption of possession gave the jury the appropriate standard with which to evaluate the evidence (People v Lopez, 157 A.D.2d 527, lv denied 75 N.Y.2d 921; see also, People v Pratt, 153 A.D.2d 867).
Concur — Carro, J.P., Rosenberger, Wallach, Ross and Asch, JJ.