PEOPLE v. HAWKINS (2002)

Defendant appeals from a judgment convicting him following a jury trial of, inter alia, two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1], [12] ).   We reject the contention of defendant that his conviction with respect to those counts is not supported by legally sufficient evidence.   Although defendant moved to dismiss those counts of the indictment on that ground at the close of the People's case, he failed to renew his motion after presenting evidence and thus waived subsequent review of that issue (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  see also People v. Kerner, 299 A.D.2d 913, 751 N.Y.S.2d 139).

Contrary to defendant's further contention, the verdict with respect to those counts of the indictment is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The People established that, upon executing a search warrant at defendant's residence, the police found defendant next to a metal box containing a dish with cocaine residue.   The box also contained a scale, razor blades, a plastic screening device and a cutting agent known as inositol, items that the police testified are commonly used in the preparation of cocaine for distribution.   Additionally, the officers located 38 bags of cocaine behind a loose brick in the alley wall next to defendant's residence, and the People presented evidence that the alley was accessible only from defendant's kitchen or from a parking lot in the rear of the residence.   The entrance from the parking lot, however, was blocked by trash cans and trash bags, making access into the alley from any location other than defendant's kitchen “very difficult and therefore highly improbable” (People v. Powell, 209 A.D.2d 879, 881, 619 N.Y.S.2d 788, lv. denied 84 N.Y.2d 1037, 623 N.Y.S.2d 193, 647 N.E.2d 465).   Thus, the People established that defendant exercised “a sufficient level of control over the area in which the contraband [was] found” (People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563).   Although the evidence supports the theory that defendant's roommate may have also possessed the cocaine, “possession, even if joint, is still possession” (People v. Torres, 68 N.Y.2d 677, 679, 505 N.Y.S.2d 595, 496 N.E.2d 684;  see People v. Maye, 206 A.D.2d 846, 616 N.Y.S.2d 305;  People v. Myrick, 203 A.D.2d 902, 903, 611 N.Y.S.2d 722).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: