Opinion
(7067)
Argued September 14, 1989
Decision released October 10, 1989
Substitute information charging the defendant with the crimes of unlawful possession of cocaine with intent to sell, carrying a pistol without a permit and criminal possession of a pistol, brought to the Superior Court in the judicial district of Fairfield and tried to a jury before W. Sullivan, J.; verdict and judgment of guilty, from which the defendant appealed to this court. No error.
David P. Friedman, special public defender, with whom, on the brief was Paul F. Thomas, special public defender, for the appellant (defendant).
Richard F. Jacobson, assistant state's attorney, with whom, on the brief, were Donald A. Brown, state's attorney, and Linda Knight, assistant state's attorney, for the appellee (state).
The defendant was convicted after a jury trial of the crimes of unlawful possession of a narcotic substance with intent to sell, in violation of General Statutes 21a-277 (a); carrying a pistol on his person without a permit, in violation of General Statutes 29-35 (a) and 29-37 (b); and criminal possession of a pistol, in violation of General Statutes 53a-217 (a). These convictions were based on a short, continuous incident wherein two police officers, while in the process of assisting in the execution of an arrest warrant against a different individual, observed the defendant on the second floor landing of the fire escape of a building. The defendant first dropped a white handkerchief from his right hand and, as the officers proceeded to the second Boor, he entered a doorway into the building. The same two officers immediately retrieved the handkerchief, which was found lying on the landing of the fire escape, and, upon seeing that twelve packets of cocaine and a loaded gun were wrapped in the handkerchief, they proceeded to chase the defendant. Another officer in the vicinity assisted in the defendant's arrest by apprehending him.
The defendant appeals the conviction of unlawful possession of a narcotic substance with intent to sell asserting (1) that the trial court erred in giving a jury instruction on the meaning of constructive possession since there was insufficient evidence to warrant an instruction on this form of possession, and (2) that the trial court violated his constitutional right to a unanimous jury verdict by failing to instruct the jury that it had to agree on how the element of possession was proven by the state.
As to the first issue, we find, from our review of the record, that sufficient evidence was presented to warrant a jury instruction on constructive possession. As to the second issue, this court denies review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 526 (1973), because the defendant's claim of error is not of constitutional dimension. See State v. Bailey, 209 Conn. 322, 337-38, 551 A.2d 1206 (1988); State v. Paladino, 19 Conn. App. 576, 580, ___ A.2d ___ (1989); cf. State v. Torrice, 20 Conn. App. 75, ___ A.2d ___ (1989); State v. Ostolaza, 20 Conn. App. 40, ___ A.2d ___ (1989).