PEOPLE v. HOOKS (1999)

 Defendant appeals from a judgment convicting him following a jury trial of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and other crimes.   Defendant contends that he had automatic standing to challenge the search of the premises because of the statutory presumption of knowing possession under Penal Law § 220.25 (see, People v. Tejada, 81 N.Y.2d 861, 863, 597 N.Y.S.2d 626, 613 N.E.2d 532;  People v. Millan, 69 N.Y.2d 514, 518-519, 516 N.Y.S.2d 168, 508 N.E.2d 903).   Defendant failed, however, to raise that contention at the suppression hearing, and thus it is not preserved for our review (see, People v. Carter, 86 N.Y.2d 721, 722, 631 N.Y.S.2d 116, 655 N.E.2d 157, rearg. denied 86 N.Y.2d 839, 634 N.Y.S.2d 447, 658 N.E.2d 225;  People v. Ross, 209 A.D.2d 452, 453, 619 N.Y.S.2d 580, lv. denied 84 N.Y.2d 1038, 623 N.Y.S.2d 194, 647 N.E.2d 466).   In any event, the possession charges were not “rooted solely in a statutory presumption attributing possession to * * * defendant”, and thus defendant was not entitled to automatic standing (People v. Tejada, supra, at 863, 597 N.Y.S.2d 626, 613 N.E.2d 532).   Rather, the prosecution pursued a theory of constructive possession based on the statement of defendant that the drugs were his (see, People v Tejada, supra;  People v Millan, supra, at 518-519, 516 N.Y.S.2d 168, 508 N.E.2d 903).

 We further reject defendant's contention that County Court erred in admitting the cocaine and marihuana into evidence because of deficiencies in the chain of custody.   Although the chemist who analyzed the samples was unavailable to testify at trial, the People provided “ ‘reasonable assurances of the identity and unchanged condition’ of the evidence” (People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310, quoting Amaro v. City of New York, 40 N.Y.2d 30, 35, 386 N.Y.S.2d 19, 351 N.E.2d 665;  see, People v. Jiminez, 100 A.D.2d 629, 473 N.Y.S.2d 593, lv. denied 62 N.Y.2d 985, 479 N.Y.S.2d 1039, 468 N.E.2d 307).   Any deficiency in the chain of custody went to the weight of the evidence rather than its admissibility (see, People v. Julian, supra, at 344, 392 N.Y.S.2d 610, 360 N.E.2d 1310;  People v. Caldwell, 221 A.D.2d 972, 973, 634 N.Y.S.2d 331, lv. denied 87 N.Y.2d 920, 641 N.Y.S.2d 602, 664 N.E.2d 513).

Judgment unanimously affirmed.

MEMORANDUM: