People v. Mendez (147 A.D.2d 712, 1989)

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered November 14, 1985, convicting him of criminal possession of a controlled substance in the first degree, and imposing sentence. The appeal brings up for review the denial, after a hearing (Lakritz, J.), of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

The hearing court properly admitted in evidence certain contraband which was discovered after the police made a legitimate traffic stop and saw the contraband lying in plain view on the front seat (see, People v Dixon, 130 AD2d 680, lv denied 70 NY2d 645; People v Ahing, 125 AD2d 476, 477). Furthermore, the chain of custody established at the hearing presented reasonable assurances that the contraband was identical to that seized and that its condition was unchanged (see People v Julian, 41 NY2d 340, 343-344; People v Newman, 129 AD2d 742, lv denied 70 NY2d 652).

In charging the jury the trial court set forth the law regarding the statutory presumption of possession by the occupants of an automobile in which contraband is found (Penal Law § 220.25 [1]). The court stated in pertinent part: "you may reject such presumption or inference if you find evidence has been submitted to you from any source whatsoever which rebuts this presumption or inference.” The Supreme Court has discouraged the use of the word "rebut” when it is applied to statutory presumptions against defendants, noting that the jury could logically conclude that the defendant must prove the presumption is inapplicable (Francis v Franklin, 471 US 307, 316-318). Although the trial court’s language in this instance was unfortunate, we find that the charge as a whole conveyed the proper standard to the jury (see, People v Fisher, 112 AD2d 378).

The defendant contends that the postverdict hearing court should have vacated his verdict on the ground of newly discovered evidence (see, CPL 330.30). The evidence was a letter written by a codefendant, after both had been convicted, in which the codefendant stated that the defendant did not know that there were drugs in the automobile.

The court properly exercised its discretion in denying the defendant’s motion. It is unlikely that the new evidence would change the result if admitted at a new trial. The credibility of the codefendant is questionable, since even after his conviction he claimed that he did not know the drugs were ever in the automobile, despite the fact that he was driving it. In addition, the alleged new evidence was available during the trial and could have been discovered through due diligence. The defendant’s mother testified at the posttrial hearing that the codefendant had told her either before or during the trial that her son was innocent. However, she did not convey this information to her son’s attorney. The defendant has failed to meet, by a fair preponderance of the evidence, his burden of demonstrating that the evidence was indeed "newly discovered” (see, People v Salemi, 309 NY 208, 215-216, cert denied 350 US 950).

We have considered the defendant’s remaining contentions and find them to be without merit. Mangano, J. P., Lawrence, Spatt and Balletta, JJ., concur.