| People v Santiago |
| 2012 NY Slip Op 00248 [91 AD3d 506] |
| Jnury 17, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Hector Santiago, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered January13, 2009, convicting defendant, after a jury trial, of criminal possession of a controlled substancein the first degree, and sentencing him to a term of 14 years, 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]). Defendant was properly convicted under both the automobilepresumption (Penal Law § 220.25 [1]) and the theory of constructive possession (see People v Caba, 23 AD3d 291[2005], lv denied 6 NY3d 810 [2006]).
Defendant did not preserve his arguments concerning the applicability of the automobilepresumption, and we decline to review them in the interest of justice. As an alternative holding,we also reject them on the merits. In the circumstances of this case, there was "a reasonably highdegree of probability" (People v Leyva, 38 NY2d 160, 166 [1975]) that defendant'spossession of a large quantity of drugs hidden in a vehicle followed from his presence in thevehicle.
The court properly declined defendant's request for a circumstantial evidence instruction. Thecase was not based on circumstantial evidence. Instead, it was based on direct evidence ofdefendant's presence in the car in close proximity to a large quantity of cocaine. From thatevidence, the jury could infer possession under the automobile presumption, the theory ofconstructive possession, or both. The court properly instructed the jury on those theories, andthere was no need for the court to give a circumstantial evidence charge as well (see People v Vasquez, 56 AD3d378, 378-379 [2008], lv denied 12 NY3d 788 [2009]).
We perceive no basis for reducing the sentence.
This court's prior order (People v Santiago, 2011 NY Slip Op 60327[U] [2011]),which denied defendant's motion to unseal the minutes of a hearing [*2]conducted pursuant to People v Darden (34 NY2d 177[1974]) and for related relief, is dispositive of defendant's remaining claims. In any event, there isno reason to revisit our prior determination. Concur—Tom, J.P., Catterson, DeGrasse,Richter and Manzanet-Daniels, JJ.