People v. Gonzalez , 633 N.Y.S.2d 22 ( 1995 )

—Order, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), entered February 25, 1994, which dismissed the count of the indictment charging defendant with criminal possession of a controlled substance in the third degree, unanimously affirmed.

Viewing the evidence before the Grand Jury in the light most favorable to the People (see, People v Jennings, 69 NY2d 103, 115), and assuming that defendant had authority over the codefendant in connection with the sale of cocaine to the undercover officer, the proof was insufficient to show that defendant constructively possessed the single vial of cocaine recovered from codefendant’s person, which had a different color top, and contained a different amount of cocaine, from the vial involved in the sale (cf., People v Manini, 79 NY2d 561, 574-575). Concur—Sullivan, J. P., Rosenberger, Ross, Asch and Nardelli, JJ.