Viewing the evidence in a light most favorable to the People (People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), defendant's guilt of criminal possession of a controlled substance in the third degree was proven beyond a reasonable doubt by legally sufficient evidence that he and the codefendant were discovered by the arresting officer, acting on a search warrant, fleeing from an apartment where there were drugs and drug paraphernalia in open view (Penal Law § 220.25; People v Daniels, 37 N.Y.2d 624). However, without aid of the statutory presumption contained in Penal Law § 220.25 (2) which is inapplicable to drug paraphernalia (see, People v Tejada, 81 N.Y.2d 861), the evidence adduced at trial was legally insufficient to prove that defendant exercised dominion and control over the drug paraphernalia, and we accordingly dismiss those counts of the indictment (see, People v Manini, 79 N.Y.2d 561, 573). In view of defendant's past criminal record, we do not find the sentence excessive (see, People v Junco, 43 A.D.2d 266, 268, affd 35 N.Y.2d 419, cert denied 421 U.S. 951).
Concur — Rosenberger, J.P., Wallach, Kupferman, Ross and Williams, JJ.