PEOPLE v. RODRIGUEZ

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

The PEOPLE of the State of New York, Respondent, v. Juan RODRIGUEZ, Defendant-Appellant.

Decided: October 21, 2004

BUCKLEY, P.J., MAZZARELLI, ANDRIAS, MARLOW, CATTERSON, JJ. Laura R. Johnson, The Legal Aid Society, New York (Kevin Casey of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Megan E. Joy of counsel), for respondent.

Judgment, Supreme Court, New York County (Herbert I. Altman, J.), rendered September 19, 2002, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   The credible evidence, including evidence of defendant's conduct evincing a consciousness of guilt, warranted the inference that he knew the contents of a brown paper bag containing cocaine (see People v. Reisman, 29 N.Y.2d 278, 285-286, 327 N.Y.S.2d 342, 277 N.E.2d 396 [1971], cert. denied 405 U.S. 1041, 92 S.Ct. 1315, 31 L.Ed.2d 582 [1972] ).   The court properly charged the jury on the element of knowing possession, and properly denied defendant's request for an instruction on “something like unknowing transient possession.”

 There is nothing in the record to substantiate defendant's assertion that the court violated the principles of People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] in its response to a jury note (see People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983];  see also People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387 [1995] ).   A presumption of regularity attaches to judicial proceedings and may be overcome only by substantial evidence (see People v. Velasquez, 1 N.Y.3d 44, 48, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003] ).   Instead, defendant's claim rests on speculation.