Opinion
March 2, 1999
Appeal from the Supreme Court, New York County (Ira Beal, J.).
The court properly declined to deliver a circumstantial evidence charge, since the case against defendant did not rest exclusively on circumstantial evidence. Contrary to defendant's argument, a constructive possession case is not necessarily a circumstantial case ( People v. Daddona, 81 N.Y.2d 990, 992). Defendant's constructive possession of the contraband itself, and not merely the apartment in which the contraband was found, was established by direct evidence, namely defendant's close proximity, in a small studio apartment, to about $10,000 worth of cocaine and a gun, both of which were in plain view ( see, People v. David, 234 A.D.2d 787, lv denied 89 N.Y.2d 1034; People v. Robinson, 225 A.D.2d 399, 400, lv denied 88 N.Y.2d 884). This was not a situation where evidence of dominion and control over an apartment required "the drawing of an additional inference" ( People v. Brian, 84 N.Y.2d 887, 889) to establish dominion and control over contraband contained in the apartment.
We have considered and rejected defendant's remaining claims including those set forth in his pro se supplemental brief.
Concur — Sullivan, J. P., Ellerin, Williams and Tom, JJ.