People
v.
James

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Second DepartmentNov 1, 1999
699 N.Y.S.2d 418 (N.Y. App. Div. 1999)
699 N.Y.S.2d 418266 A.D.2d 236

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Submitted September 24, 1999

November 1, 1999

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered July 29, 1997, convicting him of criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.

Hayward, Parker O'Leary, Middletown, N.Y. (Richard L. Parker of counsel), for appellant.

Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass and Paul Harnisch of counsel), for respondent.

WILLIAM C. THOMPSON, J.P., DANIEL W. JOY, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.


DECISION ORDER

ORDERED that the judgment is affirmed.

The defendant was found in his motel room with a packet of $20 bills on his person and a few feet away from two partially-open tissue papers containing 28 tinfoil packages of cocaine. Also present in the room were loose pieces of aluminum foil, a razor with cocaine residue on it, and a second packet of $20 bills.

The trial court was correct in charging the presumption of knowing possession pursuant to Penal Law § 220.25(2), as the defendant was in close proximity to the cocaine and there was sufficient evidence to establish that the substance was being prepared for packaging ( see, People v. Frazier, 138 A.D.2d 401; People v. Staley, 123 A.D.2d 407; People v. McCall, 137 A.D.2d 561). Applying this presumption of possession, which was not rebutted, the evidence was legally sufficient to support the defendant's conviction.

The trial court properly allowed expert testimony regarding the packaging of cocaine, since this subject is not within the knowledge of the average juror ( see, People v. Vaughan, 187 A.D.2d 685; People v. Gallego, 155 A.D.2d 687).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

THOMPSON, J.P., JOY, McGINITY, and FEUERSTEIN, JJ., concur.