Opinion
Argued December 10, 1979
Decided January 3, 1980
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOSEPH COHEN, J.
Stanley Neustadter for appellant.
Mario Merola, District Attorney (David H. Fromm and Billie Manning of counsel), for respondent.
MEMORANDUM.
The order appealed from should be affirmed. We agree with the Appellate Division that the evidence indicating that defendant had control over the apartment was sufficient to support the conclusion reached by the jury that defendant constructively possessed the heroin (valued at $30,000) and drug paraphernalia located in the otherwise empty apartment. In light of the condition of the apartment and its contents, defendant's manner of entry, combined with his possession of the key, the rent receipts and the realtor's business card permitted the jury to find that the defendant had been in the apartment before and sufficed to prove control in this case (see People v Phiefer, 43 N.Y.2d 719; cf. People v Gambino, 35 N.Y.2d 932). As to defendant's challenge to the search warrant, we deem it unnecessary to consider the legality of the initial police entry into the apartment, since there existed sufficient independent support for the warrant in the police officer's testimony before the issuing court concerning the information provided by the landlord.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order affirmed.