Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on January 17, 2012
Tom, J.P., Catterson, DeGrasse, Richter, Manzanet-Daniels, JJ.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered January 13, 2009, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first degree, and sentencing him to a term of 14 years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). Defendant was properly convicted under both the automobile presumption (Penal Law § 220.25) and the theory of constructive possession (see People v Caba, 23 AD3d 291 , lv denied 6 NY3d 810 ).
Defendant did not preserve his arguments concerning the applicability of the automobile presumption, and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. In the circumstances of this case, there was "a reasonably high degree of probability" (People v Leyva, 38 NY2d 160, 166 ) that defendant's possession of a large quantity of drugs hidden in a vehicle followed from his presence in the vehicle.
The court properly declined defendant's request for a circumstantial evidence instruction. The case was not based on circumstantial evidence. Instead, it was based on direct evidence of defendant's presence in the car in close proximity to a large quantity of cocaine. From that evidence, the jury could infer possession under the automobile presumption, the theory of constructive possession, or both. The court properly instructed the jury on those theories, and there was no need for the court to give a circumstantial evidence charge as well (see People v Vasquez, 56 AD3d 378, 378-379 , lv denied 12 NY3d 788 ).
We perceive no basis for reducing the sentence.
This court's prior order (M-3531, 2011 NY Slip Op 60327[U] [January 6, 2011]), which denied defendant's motion to unseal the minutes of a hearing conducted pursuant to People v Darden (34 NY2d 177 ) and for related relief, is dispositive of defendant's remaining claims. In any event, there is no reason to revisit our prior determination.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 17, 2012