Opinion
April 20, 1992
Appeal from the Supreme Court, Kings County (Slavin, J.).
Ordered that the judgment is affirmed.
The defendant was found in an apartment just a few feet outside a room containing more than two ounces of cocaine in plain view. Also present in the room were a triple beam scale, numerous empty vials, and plastic envelopes.
The trial court was correct in charging the statutory presumption of knowing possession pursuant to Penal Law § 220.25 (2), as the defendant was in close proximity to the cocaine and there was sufficient evidence that the substance was being prepared for packaging (see, People v Daniels, 37 N.Y.2d 624; People v Stephens, 174 A.D.2d 768; People v Riddick, 159 A.D.2d 596; People v Garcia, 156 A.D.2d 710, 711; People v Alexander, 152 A.D.2d 587, 588). Applying this presumption of possession, which was not rebutted, we find that the evidence was legally sufficient to exclude to a moral certainty every hypothesis but that of the defendant's guilt (see, People v Giuliano, 65 N.Y.2d 766; People v Harvey, 163 A.D.2d 532, 533; People v Alexander, supra; People v James, 151 A.D.2d 606, 607). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
The defendant's sentence was not excessive (see, People v Suitte, 90 A.D.2d 80).
We have examined the defendant's remaining contentions and find that they are unpreserved for appellate review (see, CPL 470.05). In any event, the defendant's remaining contentions are either without merit, or, to the extent that any error did exist, are harmless in light of the overwhelming evidence of the defendant's guilt (see, People v Crimmins, 36 N.Y.2d 230). Mangano, P.J., Miller, O'Brien and Santucci, JJ., concur.