Opinion
June 12, 1989
Appeal from the Supreme Court, Kings County (Fisher, J.).
Ordered that the judgment is affirmed.
The defendant was found near a room containing approximately 10 1/2 ounces of cocaine, some of which were packaged in vials and in plain view. Also present in the room were scales, two heat sealers, numerous empty vials and a large amount of cash.
At this nonjury trial, the court found the defendant guilty of criminal possession of a controlled substance in the third degree under the second count of the indictment charging possession with intent to sell (Penal Law § 220.16), rather than based on the weight of the cocaine which was seized.
The trial court was correct in applying the statutory presumption of possession pursuant to Penal Law § 220.25 (2), as the defendant was in close proximity to the cocaine and there was sufficient evidence that the substance was being packaged for future distribution and sale (see, People v. Daniels, 37 N.Y.2d 624; People v. Massene, 137 A.D.2d 624; People v. McCall, 137 A.D.2d 561; People v. Chandler, 121 A.D.2d 644; People v. Hylton, 125 A.D.2d 409). Applying this presumption of possession, which was not rebutted, we find the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, People v. Shakes, 150 A.D.2d 401). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
We have considered the defendant's remaining contention as to the admissibility of the cocaine and find it to be without merit. Mangano, J.P., Thompson, Sullivan and Balletta, JJ., concur.