People v. Martinez

— Appeal by the defendant from a judgment of the County Court, Westchester County (Nicolai, J.), rendered April 9, 1990, convicting him of criminal possession of a controlled substance in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed and the matter is remitted to the County Court, Westchester County, for further proceedings pursuant to CPL 460.50 (5).

On April 7, 1989, at about 10:50 p.m., Detective Joseph Radzinski and his partner were on patrol in an unmarked police car. They were patrolling an area where Detective Radzinski had previously made approximately 50 drug-related arrests when they observed the defendant remove a metal "Hide-A-Key” box from the steel grate covering the window of a plumbing supply store. The Hide-A-Key box was of a kind in which Detective Radzinski had on prior occasions observed persons hide cocaine.

The two detectives, each dressed in plainclothes but wearing an identifying badge, exited the vehicle, without drawing their guns, in order to make inquiry. The defendant, who on a prior occasion had observed Detective Radzinski making an arrest, looked at the detectives and turned and ran, with the Hide-A-Key box, into a nearby grocery store, which was open to the public. Detective Radzinski and his partner followed and they observed the defendant hand the box to the codefendant Palmer, who, followed by Detective Radzinski, went to the back of the store, where he threw the box to the floor. Detective Radzinski picked up the box, looked inside, and saw 17 vials of what appeared to be and later proved to be crack cocaine. Both the defendant and Palmer were then placed under arrest.

Although the defendant contends otherwise, we conclude that the County Court properly denied the defendant’s motion to suppress the 17 vials of crack cocaine as the fruits of an unlawful seizure. We find, in light of Detective Radzinski’s experience, that the location, the hour, the defendant’s conduct in removing a Hide-A-Key box from a steel grate designed to prevent theft, and his flight upon the non-coercive *762approach of the police, all combined to provide a lawful basis for pursuit of the defendant into the grocery store (see, People v Leung, 68 NY2d 734; People v Wider, 172 AD2d 573; People v Grimsley, 156 AD2d 714; cf., People v Howard, 50 NY2d 583, 592, cert denied. 419 US 1023). Therefore, the defendant’s act of handing and thus abandoning the Hide-A-Key box to the codefendant Palmer was not the product of any unlawful police conduct (cf., People v Grimsley, supra; People v Wider, supra; see also, People v Boodle, 47 NY2d 398, 404). Since the defendant has no standing to challenge police conduct insofar as it was directed at the codefendant Palmer (see, People v Wesley, 73 NY2d 351; cf., People v Mosley, 68 NY2d 881, cert denied 482 US 914), whether Palmer also abandoned the "Hide-A-Key” box and thus whether Detective Radzinski was justified in opening it are not now at issue. However, the contraband Detective Radzinski thereby discovered gave him probable cause to arrest (cf., People v Leung, supra).

We also disagree with the defendant’s claim that the evidence was legally insufficient to support the verdict of guilt. Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we conclude that it was legally sufficient to support a determination that defendant possessed the cocaine seized from the Hide-A-Key box and that the defendant knew what he possessed. It is well settled that knowledge may be proven circumstantially and that, generally, possession may give rise to an inference that the possessor knows what he or she possesses (see, People v Mizell, 72 NY2d 651, 656; People v Reisman, 29 NY2d 278, 285, cert denied 405 US 1041). 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]).

We have examined the defendant’s remaining contentions and find them to be unpreserved for appellate review or without merit (see, People v Ford, 66 NY2d 428; People v Thomas, 50 NY2d 467; People v Brown, 48 NY2d 388; People v Thomas, 170 AD2d 549). Harwood, J. P., Rosenblatt and Miller, JJ., concur.