PEOPLE v. GOMEZ

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

The PEOPLE of the State of New York, Respondent, v. Angelina GOMEZ, Defendant-Appellant.

Decided: March 24, 2005

TOM, J.P., MAZZARELLI, SAXE, ELLERIN, NARDELLI, JJ. Laura R. Johnson, The Legal Aid Society, New York (Steven R. Berko of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Benjamin Cheeks of counsel), for respondent.

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered January 15, 2003, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree, and criminally using drug paraphernalia in the second degree (two counts), and sentencing her, as a second felony offender, to an aggregate term of 4 1/212 to 9 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   We see no reason to disturb the jury's credibility determinations, including its rejection of defendant's testimony.   The evidence clearly warranted the conclusion that defendant possessed the contraband in question (see e.g. People v. Doleo, 261 A.D.2d 194, 691 N.Y.S.2d 389 [1999], lv. denied 93 N.Y.2d 1017, 697 N.Y.S.2d 576, 719 N.E.2d 937 [1999] ).

The court's refusal to specifically instruct the jury that “mere presence” is insufficient to establish guilt does not warrant reversal (see People v. Slacks, 90 N.Y.2d 850, 660 N.Y.S.2d 863, 683 N.E.2d 769 [1997] ).   Although it would have been preferable for the court to have granted defendant's request for such an instruction, the court's charge, viewed as a whole, adequately conveyed the same concept.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find no basis for reversal.