| People v DeJesus |
| 2007 NY Slip Op 07766 [44 AD3d 464] |
| October 16, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Manuel DeJesus, Appellant. |
—[*1] Manuel DeJesus, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Leilani Rodriguez of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Edward M. Davidowitz, J.), rendered December14, 2001, as amended May 16, 2006, convicting defendant, after a jury trial, of criminalpossession of a controlled substance in the first degree and criminal sale of a controlled substancein the third degree, and sentencing him to an aggregate term of nine years, unanimouslymodified, on the law, to the extent of vacating defendant's conviction of criminal possession of acontrolled substance in the first degree, and remanding for a new trial on that count, andotherwise affirmed.
Defendant was charged with criminal possession in the first, second and third degrees, andcriminal sale of a controlled substance in the third degree after a "buy-and-bust" operation in theBronx. The testimony of the undercover detective at trial established the following: that she hadhanded $10 in prerecorded buy money to a man who crossed the street to a parking lot where hehanded defendant the money; that defendant took the money, took some keys from his pocket,went to the passenger side of a van parked on the lot; and that when defendant returned, heplaced a small object in the individual's hand. The detective further testified that the individualwalked back to her and handed her two clear ziplock bags of crack cocaine from the same handthat she had observed receiving the small objects from defendant.
The detectives who subsequently arrived on the scene testified at trial that they detained thedefendant and searched him recovering $185, including the $10 of prerecorded money, and a setof keys. They used the keys to open the van by unlocking a sliding door that was padlocked. Thedetectives testified that upon opening the sliding door to the back of the van, they saw two bagsof what appeared to be powder cocaine on a stool. Lab tests subsequently confirmed the powderto be one kilogram of cocaine.
Jose Paulino, who was arrested with the defendant, testified for the defense. He stated that,on the day of the arrest, he was helping defendant clear the lot which defendant rented and usedfor his refrigeration and air conditioner repair business and also to park cars. According toPaulino, at about 1:00 p.m., Jimmy Simms, a mechanic who had four of five cars parked on thelot, arrived to work on a car. [*2]Simms had keys to the vanwhere police later found the kilo of cocaine. Simms opened the van, and retrieved tools frominside. Simms, along with another man, worked on a pickup truck in the lot and left after a fewhours to get parts.
During voir dire, defense counsel had indicated that he wanted to call Simms to testify abouthis possession of the keys to the van and his access to the van. The prosecutor indicated that ifSimms testified he would face arrest. Simms stayed on the defense list, but defense counselrested without calling him. Prior to summations, however, defense counsel moved to reopen hiscase to call Simms as a witness. According to defense counsel, Simms had contacted him theprevious night to tell him that he had a conversation with the prosecutor. He said that she hadinformed him she needed answers to two questions and that Simms could leave her officeregardless of his answers. Simms responded "yes" when asked whether he had keys to the vanand whether he entered it on the date of defendant's arrest. Defense counsel told the court thatSimms had previously refused to testify at trial for fear of prosecution; and that, in a constructivepossession case, the jury should hear whether anyone other than the defendant had dominion orcontrol over the area. He further argued that the testimony would not be cumulative, sincePaulino's testimony was uncorroborated and the prosecution would likely argue in summationthat he was not credible. The prosecutor opposed the motion. She argued, inter alia, that twopeople can have joint possession of drugs, and, in any event, the only issue was who haddominion and control over the drugs at the time the undercover detective saw defendant enter thetruck. The court denied defense counsel's application to reopen its case because the court felt thetestimony would not be exculpatory, and thus not helpful to the defendant. The court also assureddefense counsel that the prosecutor would not contest that Simms had a key to the van or that hehad accessed it earlier in the day.
Subsequently, on summation, the prosecutor in fact went on to do exactly as defense counselhad surmised. The prosecutor withdrew her concession that Simms had keys and had accessedthe van on the day in question and argued that defendant was the only one with the keys.
Defense counsel's objection was sustained and the court instructed the jury that "[t]here wassome testimony that some other person had a key to that [truck] and it was conceded by thedistrict attorney that some other fellow, Jimmy something, had the key." Undaunted, theprosecutor then continued summation by challenging Paulino's testimony that Simms entered thevan where the drugs were found, arguing that he had gone into a different truck to get histools. The prosecutor further characterized the testimony as "incredible" and as lies to protectdefendant since Paulino and defendant were long-time friends.
Defendant was subsequently found guilty and the court imposed a minimum sentence of 15years to life for criminal possession of a controlled substance in the first degree, and a concurrentsentence of 1 to 3 years for criminal sale in the third degree. On May 16, 2006, the sentence wasreduced to a determinate nine years, plus five years of postrelease supervision pursuant to theDrug Law Reform Act of 2004.
On appeal, defendant asserts that the court's refusal to let him call a key witness violated hisdue process right to a fair trial. Defendant further argues that reopening his case would not haveprejudiced the People since the request was made the next morning after the defense rested. [*3]Defendant asserts that, therefore, his conviction should be reversed.
As a threshold matter, it is well established that the right of a criminal defendant to callwitnesses of his own choosing is a fundamental ingredient of the due process of law (Peoplev Williams, 81 NY2d 303, 312 [1993]). It is equally well settled that absent a showing thatan offer of proof was made in bad faith no court should completely preclude a witness fromtestifying for the defense (People v Arroyo, 162 AD2d 337, 339 [1990], affd 77NY2d 947 [1991]).
The People assert nevertheless that, even if the court erred on this issue, it was harmless errorsince the evidence against defendant was so overwhelming that Mr. Simms' testimony would nothave changed the outcome of the verdict.
This Court disagrees. A conviction for constructive possession of a controlled substancerequires legally sufficient proof that a defendant exercised dominion or control over the propertyby a sufficient level of control over the area in which the contraband is found (see PenalLaw § 10.00 [8]; People v Manini, 79 NY2d 561, 573 [1992]). While the issue oflegal sufficiency is not before this Court, we find that because of the paucity of evidence in thiscase, additional testimony from Mr. Simms could have created, at the very least, reasonabledoubt about defendant's guilt on the criminal possession count. Therefore, the court's error inrefusing to reopen the case was not harmless (see People v Mason, 263 AD2d 73, 77[2000], citing People v Crimmins, 36 NY2d 230, 237 [1975] [error is harmless only ifharmless beyond reasonable doubt and no reasonable possibility exists that error might havecontributed to defendant's conviction]).
In this case, the evidence of defendant's dominion or control over the area where the cocainewas found amounts to one uncontroverted fact that defendant had keys to the padlock on the van.The prosecutor highlighted this fact as follows: "when someone exercises what's called dominionand control over an object, they have the ability to get the object. How do we know the defendantexercised dominion and control? Because he had the key to the van on his personal key ring. . . ."
However, there was no evidence adduced at trial that defendant owned, rented or had anypossessory interest in the van (see People v Pearson, 75 NY2d 1001 [1990]).
There was no evidence that defendant kept any of his belongings in the van.
There was no evidence that defendant had, at any time that day, gone into the back of the vanwhere the kilo of cocaine was found.
There was no evidence that the crack cocaine that defendant retrieved from the passengerside of the van came from the powder cocaine found inside the van.
Further, had Simms been permitted to testify, his testimony would have corroboratedPaulino's testimony and established that defendant was not the only one with a key to the van butthat Simms also had one. Moreover his testimony would have prevented the prosecution fromchallenging Paulino's credibility on the issue, and from making the mendacious statement thatonly defendant had the key on his key ring.
Further, Simms' testimony would have corroborated and thus highlighted two salient facts:that Simms stored his tools in the back of the van, and that, earlier on the day of defendant'sarrest, he had retrieved the tools from that part of the van where the kilo of cocaine wassubsequently discovered.
While it is true that two people can have joint possession and joint dominion and control(People v Tirado, 38 NY2d 955, 956 [1976] ["(p)ossession if joint is no lesspossession"]), in this case, the lack of evidence against defendant combined with Simms'testimony could have established that defendant only had access, like others on the lot that day,but not the dominion or control required to establish constructive possession.
In People v Olivo (120 AD2d 466 [1986]), a case with a similar fact pattern, thisCourt distinguished access from dominion or control. There, a defendant was convicted ofpossession of a shotgun after police found a shotgun in plain view in the back of a car atdefendant's automobile repair shop. Defendant was arrested along with one of his employees andanother individual present at the time. No ownership papers were found for the car. At trial, thePeople suggested that defendant's motive for possession of the shotgun was to protect the areawhere he conducted alleged drug transactions.
In that case, this Court held that, "[a]n inference of possession cannot be placed upon soslender a reed as the access a defendant shared with other adults who also could have owned theproperty" (id. at 466-467, citing People v Vastola, 70 AD2d 918 [1979]). Insimilar cases where convictions for possession of guns were obtained based on theories ofconstructive possession, New York courts have held that, where those guns were found in areasoccupied by several people and where no one individual could be said to have dominion andcontrol of the weapon "the People have a heavy burden in establishing constructive possession"(People v Brown, 181 AD2d 1041, 1042 [1992], quoting Vastola, 70 AD2d at918; see also People v Rodwell, 246 AD2d 916 [1998]). In Brown, the courtreversed defendant's conviction because there, the circumstantial proof that defendant wasresident of the apartment where the gun was found "did not exclude to a moral certainty everyreasonable hypothesis of innocence" (Brown, 181 AD2d at 1042).
Likewise, in this case, had Simms testified and corroborated the challenged testimony ofdefense witness Paulino, it is unlikely that the People would have met their heavy burden ofestablishing constructive possession by defendant. The fact that Simms would probably havedenied knowledge of the cocaine, as the prosecutor surmised, should have been an issue ofcredibility for the jury, and not a foregone conclusion on which the court ruled. Consequently, wefind that the trial court erred and violated defendant's due process right to a fair trial when itrefused to allow the defense to reopen its case and call Simms as a witness. Concur—Saxe,J.P., Marlow, Buckley, Catterson and McGuire, JJ.