People v. Cespedes

• Decision Date: 04 March 1991
• Citation: 171 A.D.2d 669,567 N.Y.S.2d 151
• Parties: The PEOPLE, etc., Respondent, v. Jose CESPEDES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 151

567 N.Y.S.2d 151

171 A.D.2d 669

The PEOPLE, etc., Respondent, v. Jose CESPEDES, Appellant.

Supreme Court, Appellate Division, Second Department.

March 4, 1991.

Philip L. Weinstein, New York City (Robert L. Abell, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Peter A. Weinstein and Anne C. Feigus, of counsel), for respondent.

Before KOOPER, J.P., and LAWRENCE, HARWOOD and MILLER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Slavin, J.), rendered May 3, 1988, convicting him of criminal possession of a controlled substance in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was arrested with two other men in an apartment in which the police found a large quantity of cocaine, assorted drug paraphernalia, and $8,887. At trial, the People relied upon the statutory presumption of knowing possession of narcotic drugs pursuant to Penal Law § 220.25(2). Contrary to the defendant's contention, the trial court adequately instructed the jury on the permissive nature of the presumption, noting that the defendant's testimony should be considered as a basis for rebutting the presumption (see generally, People v. Leyva, 38 N.Y.2d 160, 168-170, 379 N.Y.S.2d 30, 341 N.E.2d 546; see also, People v. Wilt, 155 A.D.2d 895, 896, 547 N.Y.S.2d 490). In its instructions to the jury, the trial court was not required to use the exact wording requested by the defendant (see, People v. Muniz, 62 A.D.2d 1025, 404 N.Y.S.2d 24; see also, People v. Whalen, 59 N.Y.2d 273, 278-279, 464 N.Y.S.2d 454, 451 N.E.2d 212; People v. Ko, 133 A.D.2d 850, 520 N.Y.S.2d 412). We also find that the trial court did not improperly marshal the evidence ( see, People v. Saunders, 64 N.Y.2d 665, 667, 485 N.Y.S.2d 250, 474 N.E.2d 610; People v. Little, 98 A.D.2d 752, 753, 469 N.Y.S.2d 462, affd 62 N.Y.2d 1020, 479 N.Y.S.2d 518, 468 N.E.2d 700).

The defendant's remaining contentions are either without merit or unpreserved for appellate review and we decline to review them in the exercise of our interest of justice jurisdiction.