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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jose CABA, Defendant-Appellant.

The People of the State of New York, Respondent, v. Hector Figueroa, Defendant-Appellant.

Decided: November 22, 2005

TOM, J.P., ANDRIAS, FRIEDMAN, SULLIVAN, MALONE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Frances A. Gallagher of counsel), for Jose Caba, appellant. Robert S. Dean, Center for Appellate Litigation, New York (Gayle Pollack of counsel), for Hector Figueroa, appellant. Hector Figueroa, appellant pro se. Robert T. Johnson, District Attorney, Bronx (David Rong of counsel), for respondent.

Judgments, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), rendered May 14, 2002, convicting each defendant, after a jury trial, of criminal possession of a controlled substance in the first degree, and sentencing defendant Caba to a term of 17 years to life, and sentencing defendant Figueroa, as a second felony offender, to a term of 23 years to life, unanimously affirmed.

 We reject defendant Caba's challenges to the sufficiency and weight of the evidence against him.   Defendants, each of whom was in possession of a very large amount of cash, were seated in the back of a taxi, and defendant Figueroa was observed trying to kick a bag under the front seat.   The bag held paper-wrapped brick-shaped objects, containing thousands of glassine envelopes of heroin with a total value in excess of $45,000.   Caba was properly convicted under both the automobile presumption (Penal Law § 220.25[1] ) and the theory of constructive possession, and his argument that the evidence only established possession by Figueroa is unavailing.   Caba was in sufficiently close proximity to Figueroa and the drugs to exercise joint dominion and control, and the jury could have reasonably concluded that a person in possession of a large and valuable quantity of drugs would not permit another person to be in close proximity unless they were both part of the same criminal enterprise and were joint possessors (see People v. Bundy, 90 N.Y.2d 918, 920, 663 N.Y.S.2d 837, 686 N.E.2d 496 [1997] ).   Caba's arguments concerning the applicability of the automobile presumption, including his constitutional claims, are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims we would reject them (see e.g. People v. Pratt, 207 A.D.2d 671, 616 N.Y.S.2d 29 [1994], lv. denied 84 N.Y.2d 1014, 622 N.Y.S.2d 926, 647 N.E.2d 132 [1994] ).

 Defendants' claim that they were deprived of their right to a trial by a jury of 12 because 11 jurors allegedly engaged in deliberations in the absence of a juror who was having a brief colloquy with the court and counsel is a claim requiring preservation (People v. Ramirez, 264 A.D.2d 666, 696 N.Y.S.2d 20 [1999], lv. denied 94 N.Y.2d 828, 702 N.Y.S.2d 598, 724 N.E.2d 390 [1999] ), and we decline to review this unpreserved claim in the interest of justice.   Moreover, even if we were to find that preservation was not required, this would not “dispense with the need for a factual record sufficient to permit appellate review” (People v. Kinchen, 60 N.Y.2d 772, 774, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983] ).   The record does not establish that deliberations occurred during the juror's absence, but only that a jury note arrived during the brief colloquy with the juror.   The record is silent as to whether or not the note originated from deliberations conducted with all jurors present, and defendants did not request any clarifying inquiry of the jurors.

 The court properly declined to deliver a missing witness charge.   Defendants failed meet their burden under People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986], and the prosecutor never made any representations about this witness, express or implied, that served to satisfy defendants' burden.

 The court properly received the testimony of the People's chemist concerning the total weight of the drugs.   The chemist was fully qualified, and she adequately explained the statistical sampling method of evaluating the weight of the heroin and the tests she conducted (see People v. Hill, 85 N.Y.2d 256, 261, 624 N.Y.S.2d 79, 648 N.E.2d 455 [1995];  People v. Argro, 37 N.Y.2d 929, 379 N.Y.S.2d 840, 342 N.E.2d 601 [1975] ).

The record establishes that each defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

Figueroa's arguments concerning the effect of the Drug Law Reform Act (L. 2004, ch. 738) as to the sentence imposed are without merit (People v. Walker, 81 N.Y.2d 661, 666-667, 603 N.Y.S.2d 280, 623 N.E.2d 1 [1993];  see also People v. Nelson, 21 A.D.3d 861, 804 N.Y.S.2d 1 [2005] ).   We perceive no basis for reducing his sentence.

We have considered and rejected defendant's remaining claims, including those contained in Figueroa's pro se supplemental brief.