People v. Miller

—Judgment, Supreme Court, Bronx County (Richard Lee Price, J.), rendered July 30, 1992, convicting defendant, after jury trial, of criminal possession of a controlled substance in the fifth degree and seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 2Vz to 5 years and 1 year, respectively, affirmed.

Defendant relies on the decision in People v Ryan (82 NY2d 497), which concluded (1) that the "knowingly” requirement of Penal Law § 220.18, there setting forth the elements of criminal possession of a controlled substance in the second degree, applies also to the weight of the controlled substance, and (2) that there "the trial evidence was insufficient to satisfy that mental culpability element” (supra, at 499). Defendant’s challenge here to the sufficiency of proof as to his knowledge of the weight of the controlled substance, however, was not preserved; he failed to object to the charge as given to the jury, and the Court’s consideration of his claim is foreclosed as a matter of law (People v Ivey, 204 AD2d 16). Moreover, even if the issue had been preserved, it has not been shown that the trial evidence here was insufficient to satisfy the mental culpability element. "In examining the record for legal sufficiency, 'the evidence must be viewed in a light most favorable to the People * * * to determine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ ” (People v Acosta, 80 NY2d 665, *188672, quoting People v Steinberg, 79 NY2d 673, 681-682; see, People v Ryan, supra, at 499). Defendant had 13 vials of crack containing, in all, 1,099 milligrams of cocaine, more than twice the 500 milligram element of criminal possession of a controlled substance in the fifth degree set forth in Penal Law § 220.06 (5). It is not that he would be expected to know the weight of the cocaine by hefting the vials in his hand but that a "rational jury” might conclude that a person observed making hand-to-hand contacts with several passers-by in the street and in possession of 13 vials containing 1,099 milligrams of cocaine when the police thereafter approached him, would know the nature and weight of the essential element in the product he was carrying. The Court of Appeals in Ryan (supra, at 505) recognized that "[ojften there will be evidence from which the requisite knowledge may be deduced.” In Ryan, however, the Court was dealing with a conviction for attempted possession of psilocybin, a hallucinogen, in a package of mushrooms, and noted that the same inference may be unavailable for such controlled substances measured by pure weight for purposes of the statutory definitions of the crime but customarily combined with other substances to facilitate handling and use (supra, at 505). Penal Law § 220.06 (5), for violation of which defendant here was convicted, is similarly in terms of pure weight, but of cocaine, a much more common drug in our society and one commonly sold in the form of crack in vials. Here the test described in Ryan (supra, at 506), "whether sufficient evidence was presented at trial from which it could be inferred that defendant had the requisite knowledge of * * * weight” would have been met if the question had been preserved.

Nor did the People fail, as claimed by defendant, to provide reasonable assurances of the identity and unchanged circumstances of the cocaine introduced at trial, where it had remained in police custody and in identifiable containers at all relevant times (see, People v Smith, 189 AD2d 652, lv denied 81 NY2d 977; People v Harris, 181 AD2d 578, lv denied 80 NY2d 895), and thus any deficiencies in the People’s proof of chain of custody, such as their not calling every police employee who had handled the cocaine (see, e.g., People v Farga, 180 AD2d 484, lv denied 80 NY2d 830), or the first chemist who had tested it when another chemist who did a second test was available (see, e.g., People v Olin, 186 AD2d 74), go to the weight of the evidence and not its admissibility (see, People v Rivera, 184 AD2d 153, 156). There was no creditable evidence that the drugs recovered from defendant were commingled *189with other contraband. Concur—Carro, J. P., Kupferman, and Nardelli, JJ.