| People v Mayo |
| 2009 NY Slip Op 01277 [59 AD3d 250] |
| February 19, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Appellant, v Raheem Mayo, Respondent. |
—[*1] Center for Appellate Litigation, New York (Robert S. Dean of counsel), forrespondent.
Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or about April 19,2007, which granted defendant's motion to dismiss counts two and three of the indictmentcharging, respectively, criminal possession of a controlled substance in the third degree (PenalLaw § 220.16 [1]) and criminal possession of a controlled substance in the fourth degree(Penal Law § 220.09 [1]), reversed, on the law, the motion denied, and the countsreinstated.
The evidence before the grand jury was essentially as follows. At about 12:30 a.m. onDecember 28, 2006, Detective Payne and other police officers "closely followed" in "hotpursuit" a suspect in a crime, a man who had run into apartment 6 of a building in Brooklyn.After entering the apartment, a railroad flat with two adjoining bedrooms, Detective Paynemoved past the living room and saw Leola Nimmons emerging from the back bedroom. Enteringthat bedroom, a "small" room that was approximately 8 feet by 10 feet, Detective Payne sawdefendant putting on his pants; John Bosmond, defendant's father, was sitting on the bed. On adresser in the bedroom, in plain view, was a clear bag holding 47 small lime green ziplock bagscontaining a white, rocky substance. Another adult, a woman, and three children were in theliving room. One of the children, an 18-month-old, was defendant's child; the other two childrenwere the children of a neighbor. The apartment was "filthy"; empty ziplock bags were in thekitchen and bathroom and "all over the place" in the living room. The empty ziplock bagsdiffered from the lime green ones only with respect to their color; they were "brand new" and"ready for packaging."
In their brief, the People inexplicably state that the man who ran into the apartment wasClarence Saunders. However, the only witness who testified before the grand jury, DetectivePayne, stated that two men were in the apartment, defendant and John Bosmond. Thus, from theevidence before the grand jury it is clear that the man who ran into the apartment was eitherdefendant or Bosmond. Accordingly, the dissent errs in stating that "[t]here is no indication inthe record whether this man was arrested or even found in the apartment." As Detective Paynetestified that defendant was putting his pants on when he entered the bedroom, it is reasonable toinfer that Bosmond was the man who ran into the apartment. Our analysis, however, does notdepend on that inference.
After defendant and Bosmond were taken out of the apartment, the police officers were[*2]talking about the Administration for Children's Servicestaking the children from the apartment on account of the drug paraphernalia, i.e., the emptyglassine envelopes, in the living room. With that, Nimmons whispered to Detective Payne thatshe wanted to talk to him. She went on to say, "I know what you're here for" and, pointing to aspot on the floor of the bedroom, she stated, "It's on the floor right here." Under a pair of men'sjeans were two plastic bags, each of which contained small ziplock bags. One of the bagscontained 37 and the other contained 59 ziplock bags; each bag also contained a white rockysubstance. The jeans completely covered the two plastic bags. In addition to the jeans, there wereclothes all over the floor.[FN1]
The small ziplock bags inside the two plastic bags also were lime green in color. These 96ziplock bags in the two plastic bags "matched" the 47 ziplock bags on the dresser in the sameroom. Subsequent field and laboratory testing revealed that the 143 ziplock bags containedcocaine with a net weight of at least one-eighth ounce and 11.7 grains. Nimmons was the legaltenant of the apartment and the girlfriend of defendant's father. When asked if he knew whetherdefendant or his father lived in the apartment, Detective Payne answered, "They do not." Whenshe pointed to where the two plastic bags were on the floor, Nimmons did not say whose drugsthey were.
The first count of the indictment charged defendant and his father with criminal possessionof a controlled substance in the third degree (Penal Law § 220.16 [1]) for possessing the47 ziplock bags of cocaine in plain view on the dresser. This count was premised on the statutoryroom presumption, which provides that the presence of narcotics "in open view in a room, otherthan a public place, under circumstances evincing an intent to . . . package orotherwise prepare for sale such controlled substance is presumptive evidence of knowingpossession thereof by each and every person in close proximity to such controlled substance"(Penal Law § 220.25 [2]). On the basis of this presumption, "the jury is authorized. . . to draw from presence of the defendants . . . the logical inferencethat they were guilty of criminal possession of narcotics" (People v Daniels, 37 NY2d624, 631 [1975]). As the cocaine that is the subject of the second count, contained in the 96ziplock bags in the two plastic bags, was not in open view but were under the jeans, the roompresumption does not apply to that count. The grand jury nonetheless charged defendant and hisfather with possessing the 96 ziplock bags of cocaine. The question on this appeal is whether thePeople presented legally sufficient evidence [*3]that defendantwas in constructive possession of the 96 ziplock bags. If so, the third count of theindictment—which alleges that defendant and his father possessed one eighth of an ounceor more of cocaine on account of the combined weight of all 143 ziplock bags—also issupported by legally sufficient evidence.
The controlling legal standards are clear. To establish constructive possession, "the Peoplemust show that the defendant exercised dominion or control over the property by a sufficientlevel of control over the area in which the contraband is found or over the person from whom thecontraband is seized" (People v Manini, 79 NY2d 561, 573 [1992] [internal quotationmarks omitted]). Legally sufficient evidence "means simply a prima facie case, not proof beyonda reasonable doubt" (People v Swamp, 84 NY2d 725, 730 [1995]). In determining thelegal sufficiency of the evidence before the grand jury, "[t]he reviewing court must considerwhether the evidence, viewed most favorably to the People, if unexplained anduncontradicted—and deferring all questions as to the weight or quality of theevidence—would warrant conviction" (id.). "That other, innocent inferences couldpossibly be drawn from the facts [presented] is irrelevant on this pleading stage inquiry, as longas the Grand Jury could rationally have drawn the guilty inference" (People v Deegan,69 NY2d 976, 979 [1987]).
Pursuant to the room presumption, it unquestionably was reasonable for the grand jury toconclude that defendant possessed the 47 ziplock bags of cocaine in plain view on the dresser.On the evidence before it, the grand jury could rationally have drawn the guilty inference thatdefendant also possessed the contents of the two plastic bags under the jeans. That inference isrational for numerous reasons. In the first place, the 96 ziplock bags of cocaine in the plasticbags under the jeans were the same green color as the 47 ziplock bags and defendant was inclose proximity to the bags of cocaine under the jeans as well as the bags of cocaine on thedresser. The room, moreover, was a small one in the rear of the apartment and only defendant,his father and Nimmons were in the room. Thus, the universe of persons who might havedominion and control over the 96 ziplock bags under the jeans is quite small, as it comprised atmost only four persons—the three adults in the bedroom and the woman in the livingroom. On these facts, we think it entirely rational to infer that the persons who possessed the 47green ziplock bags of cocaine also possessed the 97 green ziplock bags of cocaine.
In addition, to the extent a reasonable inference can be drawn that Nimmons did not exercisedominion and control over the 96 ziplock bags, that would strengthen the inference that the othertwo persons in close proximity to the 96 ziplock bags did so. We think the grand jury rationallycould infer that the person who alerted the police to the presence of the 96 ziplock bags ofcocaine did not exercise dominion and control over them. That another inference could be drawnfrom the fact that Nimmons alerted the police to the additional cocaine is of no consequence(see Deegan, supra).
To be sure, Nimmons was the lessee of the apartment and Detective Payne testified thatdefendant and his father did not live in the apartment. Defendant's connection to the apartment,however, was far from tenuous. When the police entered the bedroom after midnight, defendantwas putting on his pants, which is hardly typical conduct of a casual visitor. And, as noted,Nimmons was the girlfriend of defendant's father, and defendant's own young child was in theliving room. Finally, the guilty inference is supported as well by the presence in the apartment ofso many other "brand new" ziplock bags "ready for packaging."
The dissent untenably asserts that "the evidence before the grand jury showed no more thandefendant's mere presence in an apartment where drugs were found." Defendant was in a [*4]small room in the apartment in close proximity not only to the 47small ziplock bags containing cocaine that were in plain view, but to the 96 ziplock bagscontaining cocaine that were under a pair of men's jeans (not, contrary to the dissent, under otherclothing as well). All 96 of the ziplock bags were of the same, lime green color. The dissentessentially glosses over this important fact, stressing instead that the other ziplock bags, which itacknowledges were "strewn throughout the apartment," were of a different color. To the extentthe dissent is of the view that the different color of the empty ziplock bags supports its position,we respectfully disagree and maintain that just the opposite is true.
Moreover, only defendant, his father and Nimmons were in the small bedroom. Thatdefendant was not someone who had the misfortune to be passing through the apartment at thewrong time is an entirely reasonable inference that can be drawn from the evidence that thepolice entered the apartment at 12:30 a.m. and, as noted, the evidence that defendant was puttinghis pants on when the police entered into the bedroom. According to the dissent, however, theevidence "show[s] only that defendant's father was Nimmons's boyfriend—evidencing alegitimate explanation for his presence in the apartment—and that defendant happened tobe present when the police entered." For the reasons stated, we think it clear the grand jury couldhave inferred much more.
The dissent does not take issue with our position that from the fact that Nimmons alerted thepolice to the additional 96 ziplock bags of cocaine, a reasonable inference can be drawn that shedid not exercise dominion and control over that cocaine.[FN2]For this additional reason, we submit that the grand jury reasonably could have inferred that thepersons who possessed the 47 ziplock bags of cocaine in the bedroom also possessed the 96ziplock bags containing cocaine that were but a few feet away in the same bedroom.
The dissent stresses the absence of "scales, chemicals, razors with which to cut the cocaine,cash, or even surfaces or equipment covered with residue." But the absence of such evidencedemonstrates only that the evidence before the grand jury was not so overwhelming as topreclude any dispute about its sufficiency. It hardly negates the reasonableness of the inferencefrom all the evidence that was adduced before the grand jury that defendant also possessed the96 ziplock bags. Regardless of whether "a drug operation [was] being run out of the apartment,"the dissent is not persuasive in brushing aside the evidence of empty ziplock bags—bagsthat were "brand new" and "ready for packaging"—in the kitchen and bathroom and "allover the place" in the living room. The fact remains that the apartment did contain paraphernaliaand its presence throughout the apartment cannot reasonably be seen as helpful to defendant'sposition.
The dissent asserts that under our analysis "everyone within open view is also presumed[*5]to be a 'trusted member of the operation,' and, automatically,charged with knowing possession of hidden drugs as well as visible drugs." Our position doesnot depend on any such presumption, however plausible or implausible it may be, and ouranalysis dictates no such sweeping or automatic consequences. Rather, our position, like ouranalysis, is, as it must be, limited to the particular facts before the grand jury and the reasonableinferences that can be drawn from those facts, viewed in the light most favorable to the People(People v Swamp, 84 NY2d at 730). Concur—Friedman, J.P., McGuire andDeGrasse, JJ.
Acosta and Freedman, JJ., dissent in a memorandum by Acosta, J., as follows: I respectfullydissent because the majority extends the room presumption to drugs not in plain view. Given theabsence of evidence that respondent exercised dominion and control over the apartment, thisextension dangerously casts too wide a net of criminality.
On December 28, 2006, at 12:30 a.m., defendant was arrested in a Brooklyn apartment withJohn Bosmond and Leola Nimmons for allegedly possessing various quantities of drugs inNimmons's apartment. Neither Bosmond or defendant lived there, although Bosmond wasNimmons's boyfriend and defendant's father. Several children, aged 18 months to 11 years old(including defendant's son), and another woman were in the living room when the police enteredthe apartment.
The arresting officer testified before the grand jury that he and other officers followed a man,who was a suspect in a crime, running into Nimmons's apartment. There is no indication in therecord whether this man was arrested or even found in the apartment. The majority makes lightof these facts by speculating that defendant or his father must have been the man who entered theapartment, although there is absolutely no evidence in the record to support this conclusion.Indeed, the People state in their brief that the man who was being pursued was a ClarenceSaunders.
In the bedroom of the apartment the officers observed a clear plastic bag containing 47 greenziplock bags of a rocky substance, later identified as crack cocaine, in plain view on the dresser.When the arresting officer went into the bedroom, Nimmons was coming out of the bedroom,Bosmond was sitting on the bed, and defendant was putting his pants on. The bedroom was asmall room, about 8 feet by 10 feet and had clothes all over the floor.
The apartment was filthy, with empty ziplock bags (of a different color than those found onthe dresser) in the kitchen and living room, and clothes and garbage strewn all over. There wereno other packaging and no scales in the apartment.
After defendant and Bosmond had been taken out and the police were discussing taking thechildren to the Administration for Children's Services, Nimmons said "I want to talk to you" andthen said "I know what you're here for. It's on the floor right there." At the spot she indicated, thebedroom floor, there were two more large ziplock bags completely covered with a pair of men'sjeans; one bag contained 37 ziplock bags and the other contained 59 bags. The 96 ziplock bagswere of the same color as the ziplock bags on the dresser, but different from the ones strewnthroughout the apartment. The bags contained cocaine and the total weight of all three bags wasone-eighth ounce and 11.7 grains. Based on the arresting officer's experience, the quantity ofcocaine was consistent with sale, not personal use.[*6]
There was no evidence that the jeans under which thedrugs were found—or any of the other clothes that were strewn all over thefloor—belonged to defendant. Nor was there any evidence that defendant exercised, orhad any right to exercise, any control over the premises. Notably, the apartment was leased toNimmons, who was Bosmond's girlfriend, and there was no evidence before the grand jury as tohow long they had been together or how often he spent the night there. Defendant, in turn, wasBosmond's son, and the testifying officer stated unequivocally that defendant did not live there.
The statutory "room" presumption does not apply to the hidden bags in this case because, byits terms, the presumption is limited to drugs in "open view." The majority nonetheless positsthat since the drugs in plain view were packaged similarly to those hidden under the jeans andrespondent was in close proximity to both, the grand jury could have inferred that respondentpossessed the hidden drugs as well. The majority buttresses this inference by speculating thatdefendant or his father was the man running into the apartment although the evidence showsotherwise. To account for the lack of evidence, the majority speculates that the People simplymade a mistake in their brief in "inexplicably" stating that the man who was being pursued wasClarence Saunders. There are several problems with these assumptions. First, in the absence ofevidence that defendant exercised dominion and control over the apartment, it criminalizes merepresence in an apartment with drugs. The Court of Appeals, however, has held that proof of thedefendant's "mere presence" in an apartment that the defendant did not own, rent or occupy isinsufficient to establish his dominion and control over drugs, guns or paraphernalia that werefound in the apartment but were not in open view and therefore were not subject to the roompresumption (People v Headley, 74 NY2d 858, 859 [1989], affg 143 AD2d 937[1988] ["Proof that the premises were used for drug dealing was not sufficient to establish thatdefendant himself was guilty of unlawful drug and weapons possession"]; see People vPearson, 75 NY2d 1001, 1002 [1990] [evidence legally insufficient to sustain convictionabsent proof that defendant had any control or possessory interest in store or backroom wheredrugs were found, or "was involved in any drug selling or other operation being conductedthere"]; People v Gil, 220 AD2d 328 [1995] [affirming dismissal of indictment wherePeople presented nothing more than proof of defendant's presence]; People v Dawkins,136 AD2d 726 [1988] [defendant could be charged with constructive possession of cocainefound in a bag under his feet, but not of 41 bags of marijuana found in another room]). Thesecases are consistent with the Legislature's policy choice to limit the roompresumption—even in a drug factory—to drugs in close proximity and inopen view.
Moreover, by relying on sheer speculation that defendant or his father was the person beingpursued, and then layering that speculation on an inference that defendant possessed the drugsthat were not in plain view because it can be presumed that he also possessed the drugs in plainview by virtue of the room presumption, the majority unfairly extends the room presumptionbeyond its intended limits. Notwithstanding the majority's insistence that its analysis does notdepend on the inference that appellant may have been the man running into the apartment, itsunsupported view of the facts clearly and unfairly support its conclusion.
The majority also states that the grand jury could have reasonably inferred that Nimmons,the lessee of the apartment, did not exercise dominion and control over the hidden drugs becauseshe alerted the police to their presence. And, this inference, according to the majority, serves tostrengthen the inference that defendant and his father constructively possessed the hidden drugs,heightened by their proximity to the drugs by virtue of the small size of the bedroom. This logic,[*7]which could be used to ensnare even the young children inthe apartment, actually highlights the dangers inherent in extending the room presumption andsettled principles of law simply to add two more counts to the indictment. Of course, if Nimmonscould have afforded a larger apartment, the inference against defendant would not be as strongunder the majority's reasoning.
Rather, as the motion court correctly found, the evidence before the grand jury showed nomore than defendant's mere presence in an apartment where drugs were found, and was plainlyinsufficient to establish his constructive possession of any of the hidden drugs found inNimmons's bedroom. Nimmons was the lessee and there was nothing to show that defendantlived with her, or had free use of the premises, or had the key to the apartment giving him access.The grand jury minutes show only that defendant's father was Nimmons'sboyfriend—evidencing a legitimate explanation for his presence in theapartment—and that defendant happened to be present when the police entered. Thisevidence does not support the theory that defendant constructively possessed the hidden drugsthrough the exercise of "dominion and control over the place where contraband was seized"(People v Manini, 79 NY2d 561, 572-573 [1992]).
Nor was there any evidence that defendant was involved in any drug packaging or sellingoperation conducted in the apartment that could be used to support his constructive possession ofdrugs that were not in plain view (see Pearson, 75 NY2d at 1002). In fact, the recordcontains no support for the People's assertion on appeal that the evidence established that theapartment served as a drug packaging facility.
Rather, there were drugs already packaged in the bedroom, some in plain view, someconcealed by clothing on the floor, in quantities large enough to infer they were to be sold. Butnothing indicative of a drug operation being run out of the apartment was discovered, such asscales, chemicals, razors with which to cut the cocaine, cash, or even surfaces or equipmentcovered with residue (cf. e.g. People vRobinson, 41 AD3d 317 [2007], lv denied 9 NY3d 925 [2007] [evidenceshowed that apartment being used as a drug factory, where it contained large quantities ofnarcotics, drug paraphernalia and cash, and permeated by a noxious chemical smell]; Peoplev Miranda, 220 AD2d 218 [1995], lv denied 87 NY2d 849 [1995] [cocaine foundnear scale, wrapping materials and a calculator]).
Moreover, the apartment, although unkempt, was clearly being used as Nimmons'sresidence. Her bedroom had a bed and a dresser, there were clothes there and in the living room,and there were an adult and several children on the premises who were obviously not involved inany illegal activity. This was clearly not a place where "only trusted members of the [narcotics]operation would be permitted to enter" (People v Bundy, 90 NY2d 918, 920 [1997]).Under these circumstances, the unspecified number of ziplock bags, all of a different color thanthose containing cocaine in the bedroom, was insufficient evidence of a drug factory given theabsence of any other paraphernalia associated with drug packaging.
Under the majority's interpretation everyone within open view is also presumed to be a"trusted member of the operation," and, automatically, charged with knowing possession ofhidden drugs as well as visible drugs. This is not only inconsistent with the Legislature's policychoice to limit the presumption to drugs in plain view, but it also may be a dangerous proposition[*8]to cast such a wide net capable of catching personsunconnected to the drug operation in question. Accordingly, I respectfully dissent.
Footnote 1: The dissent's position on thequestion of who ran into the apartment relies on the inexplicable statement in the People's briefidentifying that man as Clarence Saunders. First, the sufficiency of the evidence before the grandjury must be appraised solely on the basis of that evidence; the statement in the People's brief isnot part of and conflicts with that evidence. For that reason, the statement is irrelevant albeitconfounding, and it is equally irrelevant whether it in fact represents a mistake by the author ofthe People's brief. Surely, if the People's brief contained an extra-record statement clearlyinculpating defendant, the dissent correctly would protest that it was irrelevant. Second, thedissent makes a mountain out of a proverbial molehill. As we expressly state, our analysis doesnot depend on the inference—reasonable though it is—the grand jury could havedrawn that Bosmond was the man who ran into the apartment.
Footnote 2: Rather, the dissent wronglyasserts that the inference "could be used to ensnare even the young children in the apartment." Ofcourse, however, defendant, Bosmond and Nimmons were the ones who were in close proximityto all 96 ziplock bags in the small, back bedroom, not the other adult and the three youngchildren, who were elsewhere in the apartment. On this score, finally, we note that even if theyoung children were in that same bedroom, we hardly are committed to the proposition that itwould be equally reasonable to infer that they constructively possessed all 143 green ziplockbags of cocaine.