Green, J. P. (dissenting). The presumption of knowing possession set forth in Penal Law § 220.25 (1) should not have been charged in this case. A criminal statutory presumption may be constitutionally applied only if "there is a 'rational connection’ between the basic facts that the prosecution proved and the ultimate fact presumed” (Ulster County Ct. v Allen, 442 US 140, 165, quoting Tot v United States, 319 US 463, 467). A rational connection between proven facts and facts that the jury is permitted to infer from them depends upon a "substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend” (Leary v United States, 395 US 6, 36; see also, Ulster County Ct. v Allen, supra, at 165-166). In upholding the constitutionality of the presumption of knowing possession authorized by Penal Law § 220.25 (1), the Court of Appeals explained New York’s stricter standard, which requires that "the connection must assure 'a reasonably high degree of probability’ that the presumed fact follows from those proved directly” (People v Leyva, 38 NY2d 160, 166, quoting People v McCaleb, 25 NY2d 394, 404).
The use of the statutory presumption in the instant case fails to meet even the less exacting constitutional standard established by the Supreme Court. The jury was instructed that it was permitted to infer, solely from the presence of drugs in the automobile, that the drugs were knowingly possessed by defendant. In our view, however, there is no substantial assurance that the presumed fact, defendant’s knowing possession of cocaine and heroin, is more likely than not to flow from the proved fact that cocaine and heroin were present in the automobile. The drugs were in a locked suitcase in the automobile trunk. Defendant did not own the automobile. Although defendant was driving the vehicle when it was *92stopped, there is no indication that he had access to the trunk of said automobile (cf., People v Hicks, 138 AD2d 519, 522, lv denied 71 NY2d 969). The evidence established that only DeWitt had the combination to open the trunk. Further, the evidence does not support a finding that defendant had access to the contents of the locked suitcase. DeWitt, not defendant, produced the key to the suitcase. The only evidence indicating that defendant had control over the locked suitcase was the inadmissible hearsay statement of DeWitt to Trooper Crawford. Absent any evidence that defendant had access to the trunk or the suitcase, there is no rational connection between the presence of drugs in the vehicle and defendant’s knowing possession (see, People v Wilt, 105 AD2d 1089; People v Ballard, 133 Misc 2d 584, 590-591).
Evidence that defendant slammed the trunk shut to commence the high-speed chase and that he threw the suitcase into the river does not support the application of the statutory presumption. The majority’s reliance on that evidence ignores the fact that the jury was specifically instructed that it could infer defendant’s knowing possession solely from the presence of drugs in the automobile at the time of the stop by Trooper Crawford. The proof concerning defendant’s conduct following the stop may be relevant to defendant’s constructive possession of the drugs or to his liability as an accessory for aiding DeWitt. It does not, however, provide a rational basis for concluding that defendant exercised dominion and control over the drugs simply because the drugs were located in the trunk of the automobile in which he was riding. The presumption authorized by the statute, as reflected in the court’s charge, permitted the jury to infer defendant’s knowing possession solely from the presence of drugs in the vehicle. By charging the statutory presumption, the court invited the jury to rely on the inference of possession flowing from defendant’s presence in the vehicle rather than to resolve the sharply conflicting evidence relating to defendant’s constructive possession of the drugs. Because defendant’s knowing possession could be presumed at the time of the stop, the jury could find defendant guilty regardless of whether it accepted defendant’s testimony, supported by Trooper Crawford, that DeWitt threw the suitcase over the bridge or the truck driver’s testimony that defendant removed something from the trunk and threw it into the river. In short, the evidence concerning defendant’s conduct during the chase is not relevant to the issue whether *93his knowing possession of drugs is more likely than not to flow simply from the presence of drugs in the vehicle.
We also believe that the prosecutor’s highly improper attempts to appeal to racial prejudice warrant reversal in the interest of justice (see, CPL 470.15 [6] [a]). The prosecutor’s suggestion that Trooper Crawford was not likely to lie against defendant because both are African-Americans offends due process (see, People v Thomas, 129 AD2d 596; People v Burney, 20 AD2d 617; McFarland v Smith, 611d 414). The prosecution’s case rested almost entirely on the testimony of Trooper Crawford, and the prosecutor’s attempt to enhance his credibility by interjecting racial prejudice requires reversal (see, McFarland v Smith, supra).
Because we believe that the presumption of knowing possession is arbitrary and irrational when applied to the instant case, and that the improper racial remarks by the prosecutor violated defendant’s rights to due process, we would reverse the conviction and grant a new trial.
Pine and Boehm, JJ., concur with Doerr, J.; Green, J. P., dissents and votes to reverse and grant a new trial in a separate opinion in which Fallon, J., concurs.
Judgment affirmed.