Opinion
July 13, 1990
Appeal from the Niagara County Court, Hannigan, J.
Present — Boomer, J.P., Green, Pine, Davis and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of criminal possession of a controlled substance in the third and seventh degrees, defendant argues that the proof of constructive possession was legally insufficient. We find, in this wholly circumstantial evidence case, that the People proved beyond a reasonable doubt that defendant knowingly possessed the drugs, excluding to a moral certainty every other reasonable hypothesis (Penal Law § 220.16; § 220.03; see, People v. Kennedy, 47 N.Y.2d 196, 202, rearg dismissed 48 N.Y.2d 635; People v. Johnson, 101 A.D.2d 684). The drugs were found in a locked filing cabinet and defendant had the key to the cabinet on his person. The two persons in the garage when the police arrived, as well as a third person with access to the garage, testified that they did not possess a key to the cabinet, and Detective Humphrey testified that none of the keys hanging on the pegboard off the main floor fit the filing cabinet lock. We find the evidence sufficient to show the drugs were under defendant's dominion and control even though others had access to the premises (see, People v. Torres, 68 N.Y.2d 677; People v Robertson, 48 N.Y.2d 993; People v. Luper, 144 A.D.2d 1009, lv denied 73 N.Y.2d 788). We also find that the court's charge on constructive possession was correct because possession, even if joint, nonetheless is possession (see, People v. Torres, supra). Defendant abandoned his motion to suppress the fruits of the search warrant, thereby waiving the right to challenge the validity of the search warrant (see generally, People v Gustafson, 110 A.D.2d 1055).