Opinion
April 15, 1994
Appeal from the Niagara County Court, Hannigan, J.
Present — Green, J.P., Pine, Fallon, Callahan and Boehm, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: County Court's reasonable doubt instruction to the jury unconstitutionally diminished the People's burden of proof and deprived defendant of his Fifth Amendment right to a verdict based upon the requisite degree of proof (see, People v Walker, 198 A.D.2d 795; People v Sneed, 193 A.D.2d 1139, lv denied 82 N.Y.2d 759; see also, Sullivan v Louisiana, 508 US ___, 113 S Ct 2078).
We conclude, however, that dismissal of the indictment is not required. The evidence in this circumstantial evidence case (see, People v Francis, 79 N.Y.2d 925) is sufficient to establish constructive possession by defendant of the cocaine, revolver, ammunition and other property seized from two safes inside the bedroom rented by defendant (see, People v Torres, 68 N.Y.2d 677; People v Robertson, 48 N.Y.2d 993; People v Fuller, 168 A.D.2d 972, lv denied 78 N.Y.2d 922). The proof at trial established that defendant paid $100 to the occupant of the house as rental to "put some things in [her] house for a couple of days"; that the bedroom was empty except for some clothes inside a closet when defendant moved in; that defendant had one of the two keys for the door to the bedroom and that the other key was kept at the house of the landlady's aunt; that, although people came to the house to see defendant, only he and his companion "Caviar" used the bedroom; and that a Western Union receipt bearing defendant's nick-name "EZ" was found inside the room when it was searched. The evidence was sufficient to prove defendant's dominion and control of the bedroom. Constructive possession may be found "though a defendant may be absent from the apartment under his or her dominion and control, or others have use of it * * * Moreover, possession, even if joint, is still possession" (People v Torres, supra, at 679).
Defendant's remaining contention has not been preserved for our review (see, CPL 470.05), and we decline to reach it in the interest of justice (see, CPL 470.15).