Opinion
February 18, 1999
Appeal from the Supreme Court, New York County (Daniel FitzGerald, J.).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There was ample evidence of constructive possession (see, People v. Bundy, 90 N.Y.2d 918), as well as possession under the "room presumption" theory (Penal Law § 220.25). We see no reason to disturb the jury's credibility determinations. In light of the court's charge (see, People v. Tucker, 55 N.Y.2d 1), the jury's acquittal of defendant on the possession with intent to sell count and weapon possession counts was not repugnant to the convictions on the other counts.
By not challenging the race-neutral explanations offered by the People for the peremptory challenges at issue, defendant failed to preserve his Batson claim, and we decline to review it in the interest of justice. Were we to review this claim, we would find the prosecutor's reasons to be non-pretextual.
Since defendant's sentence for criminal possession of a controlled substance in the first degree was the minimum authorized by law, discretionary review of the sentence is foreclosed (CPL 470.20). We do not find imposition of this sentence to be unconstitutional in the circumstances presented.
Concur — Tom, J. P., Mazzarelli, Andrias and Saxe, JJ.