| People v Gaston |
| 2017 NY Slip Op 01411 [147 AD3d 1219] |
| February 23, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Samuel C.Gaston, Appellant. |
Bruce Evans Knoll, Albany, for appellant.
Kelli P. McCoski, District Attorney, Fonda (Peter M. Califano of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.),rendered June 20, 2014, upon a verdict convicting defendant of the crimes of criminal possessionof a controlled substance in the third degree (two counts).
In June 2013, investigators executed a search warrant at an unoccupied apartment in the Cityof Amsterdam, Montgomery County and found both heroin and items needed to prepare it forsale. An indictment was handed up charging defendant with two counts of criminal possession ofa controlled substance in the third degree and, following a jury trial, he was found guilty ascharged. County Court sentenced defendant, a second felony drug offender, to an aggregateprison term of seven years to be followed by postrelease supervision of three years. Defendantnow appeals.
Defendant was not found to be in physical possession of the heroin. The People proceeded totrial on a theory of constructive possession and defendant contends that they failed to presentlegally sufficient evidence showing that he exercised the requisite "dominion or control" over theapartment where the heroin was recovered (Penal Law § 10.00 [8]; seePenal Law § 220.16 [1], [12]; People v Manini, 79 NY2d 561, 573 [1992];People v Leduc, 140 AD3d1305, 1306 [2016], lv denied 28 NY3d 932 [2016]). Defendant failed to preservethis issue for our review by renewing his motion to dismiss at the close of all proof (see People v Lancaster, 143 AD3d1046, 1047 [2016], lv denied 28 NY3d 1147 [2017]; People v Fournier, 137 AD3d1318, 1319 [2016], lv denied 28 NY3d 929 [2016]). His assertion will neverthelessbe addressed as part of a weight of the evidence review that, insofar as acquittal was a reasonablepossibility in this case, obliges us to "weigh conflicting testimony, review any rational inferences[*2]that may be drawn from the evidence and evaluate thestrength of such conclusions . . . [to] decide[ ] whether the jury was justified infinding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 348 [2007]; see People vLancaster, 143 AD3d at 1047).
Defendant was not there when investigators searched the apartment. The tenant of theapartment, Mario Vasquez, testified that he lived elsewhere in the summer of 2013 and used theapartment to store personal effects.[FN1] Vasquez would lend the apartment key todefendant in return for money, and a neighbor testified that defendant frequently visited theapartment and was there the day before it was searched. Following a traffic stop on the morningof the search, investigators recovered the key from defendant's vehicle and used it to unlock theapartment door (cf. People v Brown, 188 AD2d 930, 931 [1992]). Defendant presentedevidence that another man, Samuel Abellman, also entered the apartment on occasion, but that"does not preclude a finding of constructive possession by defendant because possession may bejoint" (People v Archie, 78 AD3d1560, 1561 [2010], lv denied 16 NY3d 856 [2011]; see People v Buchanan, 95 AD3d1433, 1435 [2012], lv denied 22 NY3d 1039 [2013]). Accordingly, viewing theforegoing proof in a neutral light and deferring to the jury's assessment of witness credibility, wecannot say that the verdict was against the weight of the evidence (see People vBuchanan, 95 AD3d at 1434-1435; People v Shoga, 89 AD3d 1225, 1227-1228 [2011], lvdenied 18 NY3d 886 [2012]; Peoplev Banks, 14 AD3d 726, 727-728 [2005], lv denied 4 NY3d 851[2005]).[FN2]
Defendant further argues that County Court committed reversible error in allowing thePeople to impeach their own witness with his prior statements. Abellman was an admitted drugdealer and, as noted above, had been spotted at the apartment. Abellman indicated in a writtenstatement to investigators and testimony before the grand jury that defendant was his heroinsupplier and that defendant's heroin was stashed at the apartment. Abellman testified at trial,however, that he did not know defendant, had never bought drugs from defendant and did notrecall ever having been to the apartment. County Court excused the jury to allow the People to[*3]question Abellman and assess whether he would "give[ ]testimony upon a material issue of the case which tends to disprove the[ir] position" that would,in turn, allow the People to impeach his credibility with the prior statements (CPL 60.35 [1]).Abellman reiterated that he did not recall defendant, did not recall visiting the apartment and hadno idea whether defendant kept heroin there. Without further ado, the jury was summoned andthe People extensively questioned Abellman regarding his prior statements by asking if herecalled previously saying, among other things, that defendant supplied him with heroin and thathe and defendant frequently went to the apartment to bag heroin and cocaine for sale.
While "[e]vidence of a prior contradictory statement may be received for the limited purposeof impeaching [a] witness's credibility with respect to his or her testimony," it is inadmissiblewhere "the testimony of the witness 'does not tend to disprove the position of the party whocalled him [or her] and elicited [the contradictory] testimony' " (People v Berry, 27 NY3d 10, 17[2016], quoting CPL 60.35 [3]; seePeople v Abrams, 73 AD3d 1225, 1227 [2010], affd 17 NY3d 760 [2011]).Abellman's trial testimony falls into the latter category, as he did not call defendant's connectionto the heroin into question and only maintained that he had no knowledge of whatever connectionthere might be. This claimed lack of knowledge "merely failed to corroborate or bolster the[People]'s case" and did not affirmatively "contradict or disprove" evidence presented by them(People v Fitzpatrick, 40 NY2d 44, 52 [1976]; see People v Andujar, 290 AD2d654, 655-656 [2002], lv denied 98 NY2d 648 [2002]; People v Hickman, 148AD2d 937, 938 [1989], affd for reasons stated below 75 NY2d 891 [1990]; cf. Peoplev Berry, 27 NY3d at 17-18). The People should not, as a result, have been permitted toimpeach Abellman with his prior statements under CPL 60.35.
County Court correctly instructed the jury that the out-of-court statements by Abellman wereonly to be used for impeachment purposes and did not constitute evidence of defendant's guilt.That being said, the People had already detailed in their opening statement the ties betweendefendant and the heroin that they expected Abellman's testimony to reveal. Abellman wasimproperly impeached with his prior statements when he deviated from those expectations and,in the summation, the prosecutor emphasized the prior statements that "Abellman didn'tremember." "It is apparent that [the People's] argument depends for its meaning on having thejury infer not only that the purported inability to recall was not credible, but also that" Abellman'sprior statements regarding defendant's ties to the heroin were true (People v Hickman,148 AD2d at 938). In light of the circumstantial nature of the People's case and their improperuse of Abellman's prior statements, the error in permitting the impeachment prejudiced defendantand was not harmless (see People vMitchell, 57 AD3d 1308, 1310-1311 [2008]; People v Bellamy, 26 AD3d 638, 640-641 [2006]; cf. People vAbrams, 73 AD3d at 1227). Despite the absence of a timely objection to the improperimpeachment and the limiting instruction subsequently given by County Court, the interest ofjustice demands that we reverse and remit for a new trial (see CPL 470.15 [3] [c]; People v Mattocks, 100 AD3d930, 931 [2012]; People v Andre, 185 AD2d 276, 277-278 [1992]).
The foregoing problem was exacerbated by County Court's failure to give an appropriate juryinstruction, albeit one that defendant did not request, regarding circumstantial evidence. Therewas direct evidence of defendant's dominion and control over the apartment but, as thingsultimately stood, proof of his dominion and control over the heroin and related items wascircumstantial. County Court was obliged to, but did not, give a circumstantial evidence chargeto the jury under these circumstances (see People v Brian, 84 NY2d 887, 889 [1994]; People v Spencer, 1 AD3d 709,710-711 [2003]). The absence of that charge placed the jury in danger of "leap[ing] logical gapsin the proof offered and draw[ing] unwarranted conclusions based on probabilities of lowdegree," a danger that was already heightened given the improper [*4]impeachment of Abellman (People v Ford, 66 NY2d 428,442 [1985]; accord People v Spencer, 1 AD3d at 711). These errors in tandem onlyreinforce the need for a new trial.
Garry, J.P., Egan Jr., Clark and Aarons, JJ., concur. Ordered that the judgment is reversed, asa matter of discretion in the interest of justice, and matter remitted to the County Court ofMontgomery County for a new trial.
Footnote 1:Despite the fact that Vasquezstored personal items in the apartment, the People did not ask him to disavow ownership of theheroin.
Footnote 2:Defendant's conviction,inasmuch as it was not against the weight of the evidence presented at trial, was necessarilyfounded upon legally sufficient evidence as well (see People v Danielson, 9 NY3d at348-349; People v Garrow, 75AD3d 849, 851 [2010]). As such, defendant's challenges to the grand jury proceeding areprecluded to the extent they involve the sufficiency of the evidence presented or the instructionsgiven to the grand jury (see CPL 210.30 [6]; People v Carter, 140 AD3d 1394, 1396 [2016], lv denied 28NY3d 969 [2016]; People vMedeiros, 116 AD3d 1096, 1099 n [2014], lv denied 24 NY3d 1045 [2014]).Our review of the minutes confirms that there were no other errors in presenting the case to thegrand jury that "impair[ed] the integrity of the proceeding or cause[d] prejudice to defendant" soas to warrant the drastic remedy of reversal (People v Rivette, 20 AD3d 598, 601 [2005], lv denied 5NY3d 809 [2005]; see People vMitchell, 55 AD3d 1048, 1050 [2008], lv denied 12 NY3d 856 [2009]).