Opinion
November 27, 1995
Appeal from the Supreme Court, Kings County (Wade, J.).
Ordered that the judgment is affirmed.
On August 5, 1992, an undercover police officer purchased marihuana through an opening in a plexiglass partition located inside the defendant's clothing store. On August 12, 1992, a team of police officers returned with a search warrant for that location and, following a confirmatory purchase by the undercover officer, executed the warrant. As soon as the police entered, the defendant, who was behind the plexiglass partition, fled out the back door. He was apprehended moments later in the rear of the premises. In their search of the premises, the police found, inter alia, over one-eighth ounce of cocaine packaged in 25 bags, over two ounces of marihuana packaged in 62 bags, and two pipes with cocaine residue.
It is well settled that to support a charge that a defendant was in constructive possession of contraband, "the People must show that the defendant exercised `dominion or control' over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized" (People v Manini, 79 N.Y.2d 561, 573). Here, the People's evidence established, inter alia, that (1) a portion of the narcotics was situated on an open shelf behind and just below the plexiglass partition, (2) the remaining narcotics were situated on a stairwell located behind the plexiglass partition, (3) the defendant was situated in close proximity to all the narcotics, (4) the defendant was the proprietor of the store, (5) marihuana had been sold to the undercover officer only a few minutes prior to the execution of the warrant, (6) prerecorded money was recovered from a metal box in the stairwell which contained over $500, and (7) the defendant attempted to flee upon the execution of the warrant (see, People v Manini, supra, at 573; People v Tejeda, 73 N.Y.2d 958; People v Robertson, 48 N.Y.2d 993; People v Davis, 144 A.D.2d 689; cf., People v Pearson, 75 N.Y.2d 1001). We find that this evidence amply supports the conclusion that the defendant was in constructive possession of the narcotics.
Furthermore, the fact that the cocaine and marihuana were packaged in numerous small bags (62 bags of marihuana and 25 bags of cocaine) demonstrated that the drugs were intended to be sold and were not for personal use (see, People v Timmons, 127 A.D.2d 806).
The defendant's contention that the People failed to prove, pursuant to People v Ryan ( 82 N.Y.2d 497), that he knew the weight of the narcotics which he had possessed is unpreserved for appellate review (see, People v Lawrence, 85 N.Y.2d 1002; People v Sanchez, 86 N.Y.2d 27; People v Gray, 86 N.Y.2d 10).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Balletta, J.P., Ritter, Copertino and Pizzuto, JJ., concur.