People v. Gutierrez

• Decision Date: 30 January 1995
• Citation: 211 A.D.2d 822,622 N.Y.S.2d 94
• Parties: The PEOPLE, etc., Respondent, v. Ramon GUTIERREZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 94

622 N.Y.S.2d 94

211 A.D.2d 822

The PEOPLE, etc., Respondent, v. Ramon GUTIERREZ, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 30, 1995.

White & Case, New York City (David P. Greenberg and Thomas P. McGrath, of counsel; Carolyn H. Pelling, on the brief), and Philip L. Weinstein, New York City, for appellant (one brief filed).

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie and Sholom J. Twersky, of counsel), for respondent.

Before RITTER, J.P., and COPERTINO, JOY and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered April 28, 1992, convicting him of criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the People failed to prove that he had knowledge that he possessed more than one-eighth of an ounce of cocaine is unpreserved for appellate review (see, People v. Logan, 74 N.Y.2d 859, 547 N.Y.S.2d 828, 547 N.E.2d 83; People v. Okehoffurum, 201 A.D.2d 508, 607 N.Y.S.2d 695). In any event, the contention is without merit. The record reveals that the defendant and the codefendant were found disposing of a bag that contained 125 vials of crack cocaine which weighed a total of one-eighth of an ounce plus 43 grains shortly after the undercover officer observed what he believed was a drug sale. Evidence that the defendant handled a controlled substance, together with other circumstantial evidence, gave rise to the inference that the defendant knew the weight of the controlled substance (see, People v. Ryan, 82 N.Y.2d 497, 605 N.Y.S.2d 235, 626 N.E.2d 51; People v. Okehoffurum, supra ). Therefore, viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5].

The defendant also was not substantially prejudiced by the prosecutor's late disclosure of a single entry in a police officer's memo book and consequently reversal is not required (see, People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134; People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011; People v. Hernandez, 195 A.D.2d 573, 600 N.Y.S.2d 491). Although the disclosure was late, it occurred during the second day of the trial and provided the...