IN RE: NINA J. (1998)

Order of disposition, Family Court, New York County (Rhoda Cohen, J.), entered on or about January 22, 1997, which, after a fact-finding determination, same court and Judge, entered on or about October 25, 1996, that appellant committed acts, which if committed by an adult, would constitute the crimes of criminal possession of a controlled substance in the third, fourth, fifth and seventh degrees, and criminal use of drug paraphernalia, placed appellant with the Division of Youth for a period of up to 12 months, unanimously affirmed, without costs.

The court's fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence.   The presentment agency adduced ample evidence of appellant's proximity to the drugs and packaging material to support the court's reliance on the room presumption under Penal Law § 220.25(2), particularly given the small size of the apartment.   Moreover, appellant's own testimony, which is properly considered for purposes of reviewing the legal sufficiency and weight of the evidence (People v. Kirkpatrick, 32 N.Y.2d 17, 21, 343 N.Y.S.2d 70, 295 N.E.2d 753, appeal dismissed 414 U.S. 948, 94 S.Ct. 283, 38 L.Ed.2d 204), cured any deficiency in the presentment agency's case in this respect.   The record further supports the court's conclusion that appellant's testimony that she was waiting in the apartment for her friend to return and did not know the owner of the apartment failed to rebut the presumption.

MEMORANDUM DECISION.