| People v Maricle |
| 2018 NY Slip Op 01217 [158 AD3d 984] |
| February 22, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Terry L.Maricle, Appellant. |
Pamela B. Bleiwas, Ithaca, for appellant, and appellant pro se.
Stephen D. Ferri, Special Prosecutor, Binghamton, for respondent.
McCarthy, J.P. Appeals (1) from a judgment of the County Court of Cortland County(Campbell, J.), rendered July 30, 2015, upon a verdict convicting defendant of the crimes ofcriminal possession of a controlled substance in the second degree and unlawful manufacture ofmethamphetamine in the third degree, and (2) from a judgment of said court, rendered December10, 2015, which resentenced defendant.
On the day in question, defendant and codefendant Kristina Yerian went to property ownedby the parents of codefendant Robert Alberts. The three defendants gathered in a workshop areain the rear of a garage located a few feet from the house. A police officer drove by and noticedlight smoke emitting from a missing window pane in the garage door. When he pulled into thedriveway, he smelled a strong chemical odor and noticed that Alberts, who came out to talk tohim, appeared nervous. The officer left but, having determined that the smoke and odor indicatedan active methamphetamine lab, returned a few minutes later. At the officer's request, Albertscalled Yerian out of the garage. After the officer heard noises coming from inside the garage andAlberts did not respond when asked about the presence of any other people, the officer enteredthe garage. Upon observing defendant seated on a stool in front of a bench in the workshop area,the officer ordered him to leave the garage.
The police thereafter obtained and executed a search warrant, resulting in the seizure fromthe garage and house of numerous items of equipment, solvents, reagents and precursors used inthe manufacture of methamphetamine. Defendant was charged in an indictment with [*2]criminal possession of a controlled substance in the second degreeand unlawful manufacture of methamphetamine in the third degree. Following a jury trial,defendant was convicted as charged.[FN1] County Court sentenced defendant to nine yearsin prison and five years of postrelease supervision on the criminal possession of a controlledsubstance conviction, and 2
We reverse because the trial evidence was not legally sufficient to convict defendant of eithercount. In reviewing legal sufficiency, this Court views the evidence in the light most favorable tothe People and determines "whether there is any valid line of reasoning and permissibleinferences" upon which a rational jury could have found the elements of the charged crimesproved beyond a reasonable doubt on the basis of the evidence admitted at trial (People v Salce, 124 AD3d 923,924 [2015] [internal quotation marks and citations omitted], lv denied 25 NY3d 1207[2015]; see People v Reed, 22 NY3d530, 534 [2014]; People v Bleakley, 69 NY2d 490, 495 [1987]).
As relevant here, to establish criminal possession of a controlled substance in the seconddegree, the People were required to prove that defendant knowingly and unlawfully possessed"one or more preparations, compounds, mixtures or substances containing methamphetamine, itssalts, isomers or salts of isomers and said preparations, compounds, mixtures or substances are ofan aggregate weight of two ounces or more" (Penal Law § 220.18 [2]). To establishdefendant's guilt of unlawful manufacture of methamphetamine in the third degree, the Peoplewere required to prove that defendant possessed "at the same time and location, with intent touse, or knowing that another intends to use[,] each such product to unlawfully manufacture,prepare or produce methamphetamine . . . [t]wo or more items of laboratoryequipment and two or more precursors, chemical reagents or solvents in any combination" (PenalLaw § 220.73 [1]). As relevant to both charges, possession "means to have physicalpossession or otherwise to exercise dominion or control over tangible property" (Penal Law§ 10.00 [8]). Constructive possession can be shown when the defendant has a"sufficient level of control over the area in which the contraband was found" (People v Leduc, 140 AD3d 1305,1306 [2016] [internal quotation marks, brackets and citations omitted], lv denied 28NY3d 932 [2016]; accord People vTurner, 27 AD3d 962, 963 [2006]).
A defendant's mere presence in the same location as contraband is insufficient to establishconstructive possession (see People vMcGough, 122 AD3d 1164, 1166 [2014], lv denied 24 NY3d 1220 [2015]; People v Banks, 14 AD3d 726,727 [2005], lv denied 4 NY3d 851 [2005]; People v Edwards, 206 AD2d 597,597 [1994], lv denied 84 NY2d 907 [1994]). Knowledge that the contraband is present isinsufficient, standing alone, to show constructive possession (see People v Burns, 17 AD3d 709, 711 [2005]; cf. People vRivera, 82 NY2d 695, 697 [1993]). Some factors that courts may consider in determiningwhether a defendant constructively possessed contraband are the defendant's proximity to thecontraband, whether the [*3]defendant had keys to the locationwhere the contraband was found, whether the contraband was in plain view, evidence that thedefendant had used some of the drugs (when drugs are the contraband at issue), and whetherthere is witness testimony that the contraband belonged to the defendant (see People v Gaston, 147 AD3d1219, 1220 [2017]; People v McGough, 122 AD3d at 1166; People v Carpenter, 51 AD3d1149, 1150 [2008], lv denied 11 NY3d 786 [2008]; People v Young, 48 AD3d 901,902-903 [2008]; People v Mattison,41 AD3d 1224, 1225 [2007], lv denied 9 NY3d 924 [2007]; People v Cross, 25 AD3d 1020,1023-1024 [2006]; People v Burns, 17 AD3d at 711; People v Banks, 14 AD3d at727).
The evidence at trial demonstrated that defendant and Yerian had been in the garage withAlberts for approximately one hour when the officer arrived. There was no evidence thatdefendant lived in the house or garage, kept any of his personal belongings there or had keys tothe property (compare People v Young, 48 AD3d at 902-903; People v Banks, 14AD3d at 727-728). When the officer observed defendant in the workshop area, which measuredapproximately 10 to 12 feet by 20 to 24 feet, defendant was sitting on a stool in front of a bench,not touching anything. No contraband was recovered from defendant himself, nor did the proofestablish that he owned or had even touched any of the contraband.
The officer testified that a plastic one-pot methamphetamine lab—essentially a sodabottle in which all of the necessary ingredients are mixed to cause the chemical reactionsrequired to produce methamphetamine—was in plain view on a shelf approximately 20feet away from defendant. The officer further testified that he smelled a chemical odor, like paintthinner, that he recognized as indicative of an active methamphetamine lab. At trial, however, noevidence was submitted to establish that defendant was familiar with the smells associated withmethamphetamine, and the testimony left open the possibility that actual paint thinner was storedin the garage. Although the officer testified that he observed smoke both wafting from and insidethe garage, he was unable to locate the source of the smoke. The one-pot contained a clear liquidthat was tested and contained methamphetamine. Nevertheless, another officer specially trainedin dealing with methamphetamine labs testified that, from looking at the one-pot, he did notknow for certain, nor could an average person tell for sure, that it contained drugs. Indeed, thatofficer obtained negative test results from some of the liquids that he collected from the sceneand had believed contained methamphetamine.
Upon execution of the search warrant in the workshop area, the police recovered the plasticone-pot that was observed by the first officer and a second, glass Mason jar one-pot. Thefollowing items were also found in the workshop area of the garage: a bag full of cold medicinethat can be used as a methamphetamine precursor; various solvents, such as containers of brakefluid, starter fluid and Coleman fuel; chemical reagents, such as drain opener, ammonium nitrate,muriatic acid and batteries containing lithium strips; and various equipment, such as a pillgrinder,[FN3] coffee filters,plastic tubing and a face mask. While many of these items were ostensibly in plain sight, thegarage was messy and the items were not all together, but were located haphazardly throughoutthe garage. Additionally, all of these items, individually, are legal to possess and not necessarilyindicative of drug manufacturing.
The trial record is devoid of proof that defendant had ever manufactured, used or even seenmethamphetamine; if any such proof had been introduced, the jury could possibly infer that [*4]he was aware that these items were equipment and ingredients usedto manufacture methamphetamine (compare People v McGough, 122 AD3d at1166-1167; People v Cross, 25AD3d 1020, 1022-1023 [2006]; People v McLeod, 281 AD2d 746, 747-748 [2001],lv denied 96 NY2d 921 [2001]). Because the People failed to demonstrate that defendantexercised dominion or control over lab equipment, precursors, reagents, solvents or substancescontaining methamphetamine, the proof did not establish that defendant knowingly possessedany of those items. Accordingly, inasmuch as the evidence was legally insufficient to establisheither count (see People v Huertas,32 AD3d 795 [2006]; People v Burns, 17 AD3d at 710-711; People vEdwards, 206 AD2d at 597; cf. People v Rivera, 82 NY2d at 697), we dismiss theindictment.
We need not address defendant's other arguments, which have been rendered academic.
Devine, Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgments are reversed,on the law, and indictment dismissed.
Footnote 1:After the joint trial of all threedefendants, Alberts was convicted of the same two counts and Yerian was convicted of the onlycount against her, criminal possession of a controlled substance in the second degree.
Footnote 2:County Court originally imposedrestitution but, upon resentencing, that obligation was eliminated. On appeal, defendant does notraise any issues regarding the resentencing.
Footnote 3:Although the police referred tothis item as a pill grinder, the evidence indicated that it may have been a coffee bean grinder.