Opinion
March 26, 1992
Appeal from the County Court of Ulster County (Vogt, J.).
On February 18, 1988 defendant and his codefendant, Claire Hathaway, were arrested following the execution of a search warrant of an entire apartment which they occupied. Constance Colorundo and her daughter shared the apartment with defendant and Hathaway, and the search warrant was based upon Colorundo's affidavit describing the drug-related activities of defendant and Hathaway. The two of them were convicted upon a joint trial and the facts and circumstances pertinent in this case may be found in our decision in the appeal by Hathaway (People v Hathaway, 159 A.D.2d 748).
Defendant's first contention is that County Court erred concerning the missing witness charge given as a result of the prosecutor's failure to call Colorundo. This identical issue was raised in People v Hathaway (supra, at 750-751), and while the better course would have been to use the pattern jury charge (1 CJI[NY] 8.54, at 449-451; see, People v Gonzalez, 68 N.Y.2d 424), County Court was not so bound and, just as we found in Hathaway's appeal, the charge given was adequate to apprise the jury of the law (People v Hathaway, supra). We disagree with defendant's argument that the recent decision by the Court of Appeals in People v Vasquez ( 76 N.Y.2d 722) compels a different result. In Vasquez, unlike the instant case, the trial court denied the defendant's request for a missing witness charge.
Defendant also contends that the search warrant application violated the two prong Aquilar-Spinelli test (see, People v Griminger, 71 N.Y.2d 635). However, as noted in People v Hathaway (supra, at 749), the warrant application was supported by an affidavit of Colorundo, a disclosed citizen informant, made upon her personal knowledge acquired during her residency in the subject apartment. Since a reasonable reading of Colorundo's supporting affidavit supports the issuance of the warrant, County Court properly denied defendant's suppression motion (see, People v Hanlon, 36 N.Y.2d 549, 559).
Defendant further argues that because others had access to the bedroom which he shared with Hathaway, his control of the room was not exclusive. Defendant and Hathaway exercised joint control of the bedroom and, despite the fact that other persons in the apartment could access that room, their control was sufficient under the circumstances for the jury to conclude that defendant was guilty of joint constructive possession of the contraband found secreted therein (see, People v Torres, 68 N.Y.2d 677; People v Robertson, 61 A.D.2d 600, 606-607, affd 48 N.Y.2d 993; see also, People v Tejeda, 140 A.D.2d 985, 986, affd 73 N.Y.2d 958).
Defendant's remaining arguments have either been authoritatively addressed in People v Hathaway (supra), and upon which defendant adds no new perspective, or upon review have no merit.
Mikoll, Mercure, Crew III and Casey, JJ., concur. Ordered that the judgment is affirmed.