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The PEOPLE of the State of New York, Respondent, v. John RAGO, Defendant-Appellant.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered June 23, 2003, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the second and fifth degrees and two counts of criminal possession of a controlled substance in the seventh degree, and sentencing him to concurrent terms of 6 years to life, 2 to 6 years, 1 year and 1 year, respectively, unanimously affirmed.
The verdict was based on legally sufficient evidence. Defendant's constructive possession of a significant amount of narcotics found within a sleeper car room on an Amtrak train was established beyond a reasonable doubt. Defendant occupied the room from the point when he and his companion boarded the train in Chicago for the trip to New York. Although the two men inadvertently failed to get back on the train when it stopped in Philadelphia, defendant tried reclaiming his luggage when the train arrived in New York, and ultimately admitted possessing some of the contraband (see People v. Roque, 99 N.Y.2d 50, 54, 751 N.Y.S.2d 165, 780 N.E.2d 976 [2002] ). Even assuming that at the point defendant missed the train Amtrak became a gratuitous bailee of the luggage and its contents (see People v. Wilson, 93 N.Y.2d 222, 225, 689 N.Y.S.2d 419, 711 N.E.2d 633 [1999]; Foulke v. New York Consol. R.R. Co., 228 N.Y. 269, 275, 127 N.E. 237 [1920] ), Amtrak exercised control on defendant's behalf, while defendant retained, and tried to exercise, the right to reclaim. We conclude that these circumstances established a degree of control by defendant that constituted constructive possession (see People v. Manini, 79 N.Y.2d 561, 574-575, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992]; People v. Tirado, 47 A.D.2d 193, 195, 366 N.Y.S.2d 140 [1975], affd. on opn. below 38 N.Y.2d 955, 384 N.Y.S.2d 151, 348 N.E.2d 608 [1976] ). We have considered and rejected defendant's remaining arguments on this issue.
The court properly declined to provide a circumstantial evidence charge. Defendant's possession of the contraband was established, in part, by direct evidence, including his admission to possessing some of it (People v. Daddona, 81 N.Y.2d 990, 599 N.Y.S.2d 530, 615 N.E.2d 1014 [1993]; People v. Rumble, 45 N.Y.2d 879, 410 N.Y.S.2d 806, 383 N.E.2d 108 [1978]; compare People v. Brian, 84 N.Y.2d 887, 620 N.Y.S.2d 789, 644 N.E.2d 1345 [1994] ).
Defendant correctly argues that the court's transmission of certain messages, as agreed upon by counsel, to the deliberating jury in response to its notes by way of a court officer was an improper delegation of judicial authority (People v. Torres, 72 N.Y.2d 1007, 534 N.Y.S.2d 914, 531 N.E.2d 635 [1988]; People v. Ahmed, 66 N.Y.2d 307, 496 N.Y.S.2d 984, 487 N.E.2d 894 [1985] ). The content of the communication, however, was agreed to by counsel and there is no basis for speculating that the brief and uncomplicated message was inaccurately transmitted. Even now defendant is unable to point to any remotely persuasive possibility of prejudice. Accordingly, the court's error was de minimis and does not warrant reversal (see CPL 470.05 [1] [“An appellate court must determine an appeal without regard to technical errors or defects which do not affect the substantial rights of the parties”]; cf. People v. Morales, 80 N.Y.2d 450, 457 n. 2, 591 N.Y.S.2d 825, 606 N.E.2d 953 [1992] [“Of course, a de minimis violation of the absolute right to be present at trial would not necessarily result in reversal”] ).
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Decided: December 13, 2005
Court: Supreme Court, Appellate Division, First Department, New York.
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