| People v Ramirez |
| 2009 NY Slip Op 02296 [60 AD3d 560] |
| March 26, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Timoteo Ramirez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered December 16,2004, convicting defendant, after a jury trial, of criminal possession of a controlled substance inthe first and third degrees, and three counts of criminally using drug paraphernalia in the seconddegree, and sentencing him, as a second felony offender, to an aggregate term of 15 years to life,unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). The evidence supports the conclusion that defendant was aparticipant in a drug-selling operation and a joint possessor of the contraband at issue. Policeexecuting a search warrant found, throughout the apartment, indicia of a large-scale operation,including, among other things, a large quantity of drugs along with equipment for manufacturingkilogram-sized drug packages. Although nothing was in open view, this was the type of premiseswhere "a reasonable jury could conclude that only trusted members of the operation would bepermitted to enter" (People v Bundy, 90 NY2d 918, 920 [1997]), and where the presenceof casual visitors or social guests would be unlikely. Defendant and his codefendant were theonly persons present, and when the police entered defendant attempted to flee and tried todestroy his own cell phone, the records of which ultimately provided evidence of his connectionto the codefendant. Defendant was carrying nearly one thousand dollars in cash and a pager.Although only the codefendant admitted to living in the apartment, there was extensivecircumstantial evidence connecting defendant to the apartment, to the codefendant, and todocuments that appeared to reflect drug transactions. This evidence, viewed in its entirety,warranted the inference defendant and the codefendant jointly exercised dominion and controlover the premises and the contraband (see e.g. People v Marte, 14 AD3d 408 [2005], lv denied 4 NY3d888 [2005]).
Defendant failed to make a record that is sufficient to permit review (see People vKinchen, 60 NY2d 772, 773-774 [1983]; People v Johnson, 46 AD3d 415 [2007], lv denied 10NY3d 812 [2008]) of his claim that the court did not provide defense counsel with notice of ajury note and an opportunity to be heard regarding the court's response (see People vO'Rama, 78 NY2d 270 [1991]). Viewed in light of the presumption of regularity [*2]that attaches to judicial proceedings (see People v Velasquez, 1 NY3d44, 48 [2003]), the existing record, to the extent it permits review, demonstrates that thecourt satisfied its "core responsibility" under People v Kisoon (8 NY3d 129, 135 [2007]) to disclose jury notesand permit comment by counsel. The record warrants an inference that the court discussed thenote with counsel during a luncheon recess in the absence of the court reporter (see People v Fishon, 47 AD3d591 [2008], lv denied 10 NY3d 958 [2008]). Furthermore, in delivering its responseto the jury, the court read the note into the record almost verbatim. Accordingly, counsel's failureto object to the procedure employed by the court or to its response to the note renders the claimthat the court violated CPL 310.30 unpreserved (see e.g. People v Salas, 47 AD3d 513 [2008], lv denied 10NY3d 844 [2008]), and we decline to review it in the interest of justice. As an alternativeholding, we also reject it on the merits. The court's response to the note was completelyfavorable to defendant, which indicates either that counsel did have input into the response, orthat no such input was necessary. Defendant's remaining contentions are unpreserved and wedecline to review them in the interest of justice. As an alternative holding, we also reject them onthe merits. Concur—Andrias, J.P., Gonzalez, Buckley and Acosta, JJ.