PEOPLE v. RINGER (2011)

Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), rendered November 23, 2010, as amended January 6, 2011, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of five years, unanimously affirmed.

Defendant did not preserve his challenge to the sufficiency of the evidence, and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits.   We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   The evidence supports an inference of constructive possession (see People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ), and it does not support defendant's theory that a coworker may have secreted drugs in defendant's personal workstation.

The prosecutor's summation did not deprive defendant of a fair trial.   Defendant objected to a particular remark as vouching for a witness.   However, that remark was a permissible comment on a matter of credibility, and the prosecutor did not become an unsworn witness or interject her personal integrity (see People v. Overlee, 236 A.D.2d 133, 144, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  compare People v. Moye, 52 A.D.3d 1, 857 N.Y.S.2d 126 [2008], affd. 12 N.Y.3d 743, 879 N.Y.S.2d 354, 907 N.E.2d 267 [2009] ).   Defendant objected to another remark as improperly suggesting that defendant had sold drugs to another person immediately before the police executed a search warrant at defendant's workplace.   However, that was a reasonable inference from the evidence, and relevant to another charge in the indictment.   Defendant's remaining challenges to the summation are unpreserved and we decline to review them in the interest of justice.   As an alternative holding, we also reject them on the merits.

The court erred in admitting evidence of two bags of cocaine found near defendant, since the People had stipulated at the suppression hearing that they did not intend to offer that evidence at trial (CPL 710.60[2][b] ).  Under the statute, such a stipulation has the effect of suppressing the evidence.   Nevertheless, the error was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).   The police found 88 bags of cocaine in defendant's workstation, and the additional bags added little or nothing to their case.