People v. Perez — 259 A.D.2d 274

Majority

p. 274

The People of the State of New York, Respondent, v Alberto Perez, Appellant.

[687 NYS2d 84]

—Judgment, Supreme Court, New York County (Ira Beal, J.), rendered September 24, 1996, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the third degree, and sentencing him to concurrent terms of 15 years to life and IV2 to 4V2 years, respectively, unanimously affirmed.

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 NY2d 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

p. 275

worth of cocaine and a gun, both of which were in plain view (see, People v David, 234 AD2d 787 , lv denied 89 NY2d 1034 ; People v Robinson, 225 AD2d 399 , 400, lv denied 88 NY2d 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 NY2d 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.

Cases cited

People v. David 234 AD2d 787 N.Y. App. Div. 1996-12-19 p. 275
People v. Robinson 225 AD2d 399 N.Y. App. Div. 1996-03-19 at 400 p. 275
People v. Brian 84 NY2d 887 N.Y. 1994-10-25 at 889 p. 275