PEOPLE v. GONZALES (1997)

Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Robinson, J.), dated April 20, 1994, as granted those branches of the defendants' omnibus motions which were to dismiss the indictment for lack of legally sufficient evidence.

ORDERED that the order is reversed insofar as appealed from, on the law, those branches of the defendants' omnibus motions which were to dismiss the indictment for lack of legally sufficient evidence are denied, the indictment is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

 Penal Law § 220.25(1) provides, in pertinent part, that “[t]he presence of a controlled substance in an automobile * * * is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found”.   Application of this statutory presumption does not run afoul of constitutional considerations as long as there is a rational connection between the fact proved by the prosecution (i.e., the presence in the automobile of both the contraband and the defendant), and the fact to be presumed (i.e., the defendant's knowing possession of the contraband) (see, People v. Leyva, 38 N.Y.2d 160, 165, 379 N.Y.S.2d 30, 341 N.E.2d 546;  People v. Warrington, 192 A.D.2d 735, 597 N.Y.S.2d 119).   Moreover, the Court of Appeals has refined the concept of “rational connection”, stating that such connection “must assure ‘a reasonably high degree of probability’ that the presumed fact follows from those proved directly” (People v. Leyva, supra, at 166, 379 N.Y.S.2d 30, 341 N.E.2d 546, quoting People v. McCaleb, 25 N.Y.2d 394, 404, 306 N.Y.S.2d 889, 255 N.E.2d 136).

 Here, the People presented uncontroverted evidence establishing that over four pounds of cocaine were present in the trunk of the automobile in which the defendants had been traveling as passengers.   Once the People had proven the presence in the automobile of both the defendants and the contraband, the People were entitled to rely on the statutory presumption in establishing their prima facie case (see, People v. Leyva, supra, at 169, 379 N.Y.S.2d 30, 341 N.E.2d 546;  People v. Garcia, 160 Misc.2d 844, 847, 611 N.Y.S.2d 774).   The sequence of events leading up to the defendants' arrest, as well as the so-called “dealership” quantity of contraband involved, provide the requisite “reasonably high degree of probability” that the defendants' knowing possession of the contraband followed from their presence in the subject automobile (People v. Leyva, supra, at 166, 379 N.Y.S.2d 30, 341 N.E.2d 546;  see also, People v. Warrington, supra, at 736, 597 N.Y.S.2d 119;  People v. Glenn, 185 A.D.2d 84, 89, 592 N.Y.S.2d 175;  People v. Garcia, supra, at 848, 611 N.Y.S.2d 774;  People v. Rivera, 135 Misc.2d 766, 768-769, 516 N.Y.S.2d 854).

 Viewing the evidence presented to the Grand Jury in a light most favorable to the People (see, People v. Jennings, 69 N.Y.2d 103, 114, 512 N.Y.S.2d 652, 504 N.E.2d 1079), we find that it was legally sufficient to establish the material elements of the crimes of criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree (see, Penal Law §§ 220.16, 220.21).   Accordingly, the Supreme Court erred in dismissing the indictment.

The defendants' contention with reference to the admission of the Police Laboratory Controlled Substance Analysis Report (see, CPL 190.30[2] ) is unpreserved for appellate review (see, CPL 470.05[2];  People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4;  People v. Udzinski, 146 A.D.2d 245, 250, 541 N.Y.S.2d 9), and, in any event, without merit (see, People v. Washington, 228 A.D.2d 23, 652 N.Y.S.2d 750 [decided herewith]).

MEMORANDUM BY THE COURT.