People v. Mack

• Decision Date: 22 January 2002
• Citation: 290 A.D.2d 517,736 N.Y.S.2d 382
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>JACQUELINE MACK, Appellant.
• Court: New York Supreme Court — Appellate Division

290 A.D.2d 517

736 N.Y.S.2d 382

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.JACQUELINE MACK, Appellant.

Decided January 22, 2002.

Altman, J.P., Feuerstein, O'Brien and H. Miller, JJ., concur.

Ordered that the judgment is modified, on the law, by vacating the conviction of criminally using drug paraphernalia in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt as to the two counts of criminal possession of a controlled substance in the third degree (see, Penal Law § 220.25 [2]; People v Riddick, 159 AD2d 596) and endangering the welfare of a child (cf., People v Johnson, 95 NY2d 368, 371-372). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt as to those charges was not against the weight of the evidence (see, CPL 470.15 [5]).

The statutory presumption contained in Penal Law § 220.25 (2) is inapplicable to the crime of criminally using drug paraphernalia in the second degree (see, People v Santos, 210 AD2d 129; People v Tejada, 81 NY2d 861). Although the evidence was legally sufficient to establish that the defendant exercised dominion and control over the drug...