Opinion
No. KA 09-00510.
June 11, 2010.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered February 17, 2009. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree (two counts) and criminally using drug paraphernalia in the second degree (two counts).
JEREMY D. SCHWARTZ, BUFFALO, FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
Present — Martoche, J.P., Smith, Centra, Sconiers and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16, [12]). Defendant contends that the evidence is not legally sufficient to support the conviction of criminal possession of a controlled substance in the third degree under the second count of the indictment (§ 220.16 [12]). Defendant failed to preserve that contention for our review inasmuch as his motion for a trial order of dismissal was not specifically directed at the alleged error raised on appeal ( see People v Gray, 86 NY2d 10, 19). In any event, we reject defendant's contention ( see generally People v Bleakley, 69 NY2d 490, 495). The People presented evidence establishing that defendant was discovered by the police in a room within three feet of drugs that were in open view and thus that he possessed them pursuant to the drug factory presumption ( see Penal Law § 220.25). Furthermore, under "the particular facts of this case, the jury could . . . infer that, if the drugs to which the statutory presumption applied were part of the drug factory's supply, all the contraband found must have been controlled by the factory's operatives" ( People v Bundy, 90 NY2d 918, 920), including defendant. Viewing the evidence in light of the elements of criminal possession of a controlled substance in the third degree under the second count of the indictment as charged to the jury ( see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict with respect thereto is not against the weight of the evidence ( see generally Bleakley, 69 NY2d at 495).
Contrary to the further contention of defendant, County Court properly denied his request for a jury instruction on criminal possession of a controlled substance in the seventh degree as a lesser included offense of the second count of the indictment "because there was no reasonable view of the evidence to support a finding that the weight of the crack cocaine [possessed by defendant] was less than" one-half ounce ( People v Evans, 37 AD3d 847, 848, lv denied 9 NY3d 843; see People v Highsmith, 248 AD2d 961, lv denied 91 NY2d 1005, 1008; People v Palmer, 216 AD2d 883, lv denied 86 NY2d 799; see generally People v Glover, 57 NY2d 61, 63).