AD1 order dated January 17, 2012, affirming judgment of conviction. Decision below: 91 AD3d 506, 937 NYS2d 19. Smith, J., granted leave August 21, 2011.

ISSUE PRESENTED: Whether the trial court erroneously denied defendant’s request for a circumstantial evidence charge in this drug possession prosecution. The appellate court held that defendant’s presence in the car in close proximity to a large quantity of cocaine constituted direct evidence of guilt, even though the People were relying on the automobile presumption. (Assigned counsel: Steven Banks, Legal Aid Society, Criminal Appeal Bureau, 199 Water Street, NYC 10038.)

Issue before the Court: Was the defendant, a passenger in a car in which a brick of cocaine was found in a "trap" under the front passenger floor mat, entitled to a circumstantial evidence charge in a prosecution for CPCS 1 on a theories of constructive possession and the automobile presumption?

Held:  Yes.  As there was no direct evidence that the defendant was aware of the hidden compartment or exercised dominion and control over the cocaine, he was entitled to the charge.