PEOPLE v. JOHNSON (1997)

Defendant was convicted of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[12] ), based upon the seizure of cocaine from his person during the execution of a search warrant at an apartment at 150 University Avenue in Syracuse.

 Defendant contends that his conviction is against the weight of the evidence and is not supported by sufficient evidence because the People failed to prove his knowledge of the weight of the cocaine.   We disagree.   Because defendant was convicted under an aggregate weight statute, his knowledge of the weight of the drug may be inferred from the presence of a large quantity of drugs and drug paraphernalia and other evidence that he was dealing in drugs (see, People v. Sanchez, 86 N.Y.2d 27, 32-34, 629 N.Y.S.2d 179, 652 N.E.2d 925;  People v. Ryan, 82 N.Y.2d 497, 505, 605 N.Y.S.2d 235, 626 N.E.2d 51;   People v. Wright, 214 A.D.2d 989, 989-990, 626 N.Y.S.2d 340, lv. denied 86 N.Y.2d 785, 631 N.Y.S.2d 631, 655 N.E.2d 728;  People v. Graham, 209 A.D.2d 822, 823, 618 N.Y.S.2d 844, lv. denied 84 N.Y.2d 1011, 622 N.Y.S.2d 923, 647 N.E.2d 129).

Evidence of the drug trafficking activities of defendant included his clothes and other personal belongings in a bedroom at the University Avenue apartment;  his presence in the apartment when the search warrant was executed;  cocaine found on his person that was separately packaged in “eight-ball” packages;  the large quantity of cocaine and drug paraphernalia found in the apartment;  and the testimony of a prosecution witness that defendant had recently gone to New York City to purchase cocaine.   Therefore, the jury could properly infer that defendant was aware of the weight of the cocaine he possessed.

 There is no merit to the contention of defendant that the search warrant application was defective because it failed to establish the reliability of the confidential informant.   The confidential informant's reliability was established by the police investigator's affidavit in support of the application, averring that the confidential informant had previously provided reliable information and had twice made controlled purchases of narcotics for the police at the University Avenue apartment (see, People v. Elwell, 50 N.Y.2d 231, 237, 428 N.Y.S.2d 655, 406 N.E.2d 471;  People v. Stephens, 209 A.D.2d 999, 619 N.Y.S.2d 445, lv. denied 84 N.Y.2d 1039, 623 N.Y.S.2d 195, 647 N.E.2d 467).   The record does not support the contention of defendant that the police investigator made misleading statements in that affidavit.

Defendant has failed to preserve for our review his contention that the court erred in determining, after a Darden hearing (see, People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49, rearg. denied 34 N.Y.2d 995, 360 N.Y.S.2d 1027, 318 N.E.2d 613), that the People had established that threats were made against the confidential informant and that the confidential informant was legitimately unavailable due to fear that caused the informant to leave the area (see, CPL 470.05[2] ).  Were we to exercise our power to address that contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ), we would conclude that it lacks merit (see, People v. Carpenito, 80 N.Y.2d 65, 587 N.Y.S.2d 264, 599 N.E.2d 668).

Finally, defendant's sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: