| People v Rodriguez |
| 2013 NY Slip Op 06495 [110 AD3d 456] |
| October 8, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Bernardo Rodriguez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered April 30,2012, convicting defendant, after a jury trial, of criminal possession of marijuana in thesecond degree and criminal possession of a weapon in the fourth degree, and sentencinghim to an aggregate term of nine months, unanimously affirmed. The matter is remittedto Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).
The court properly instructed the jury on the subject of constructive possession(see Penal Law § 10.00 [8]). Following the Criminal Jury Instructions(CJI2d[NY] Possession—Physical and Constructive Possession), the court chargedthat in order to prove that defendant exercised dominion and control over the marijuanaand stun gun he was charged with possessing, and, therefore, that he constructivelypossessed them, the People were required to demonstrate that he "exercise[d] a level ofcontrol over the area in which the property is found . . . sufficient to givehim . . . the ability to use or dispose of the property." The court alsoinstructed the jury on the knowledge element of each crime.
Defendant argues that he was entitled to have the jury instructed that he could beconvicted only upon proof that he intended to exercise dominion and controlover the contraband. In defendant's view, even if he was fully aware that there wascontraband in the apartment he shared with his aunt and nephew, and even if he hadunfettered control over the areas where the contraband was located, he was not guilty ofpossessing it since he merely tolerated his drug-dealing nephew's use of the apartment asa repository for the contraband and had nothing else to do with it. We disagree.
There is no element of intent in constructive possession. A long line of authoritymakes clear that knowing constructive possession of tangible property is establishedwhere the People prove knowledge that the property is present and "a sufficient level ofcontrol over the area in which the contraband [was] found" (People v Manini, 79NY2d 561, 573 [1992]; see alsoPeople v Muhammad, 16 NY3d 184 [2011]).
Defendant has identified a number of appellate decisions that speak in terms of"intent" to exercise dominion and control (see e.g. People v Wesley, 73 NY2d351, 361-362 [1989]; People v[*2]Huertas, 32 AD3d 795 [1st Dept 2006]).However, these decisions do not stand for the proposition that defendant asks this Courtto accept. Furthermore, the parties to those cases do not appear to have litigated the issuepresented by this appeal, and in each case the Court does not appear to have had occasionto decide that issue (see e.g. People v Louree, 8 NY3d 541, 546 n [2007]). WhileWesley, on which defendant principally relies, did state that the People bear theburden of "establishing defendant's ability and intent to exercise dominion or control,"the holding of the case was that a defendant does not have standing to challenge a searchthat results in the discovery of contraband, based solely on his alleged constructivepossession of that contraband (id. at 361). The case did not present the questionwhether intent must be proved to establish constructive possession and the Court did notso hold. Similarly, in Huertas, this Court quoted Wesley's "ability andintent" language, but held, on the facts before it, that the evidence of constructivepossession was insufficient for lack of proof that the defendant had a sufficient level ofcontrol over the garage where drugs were recovered, not because the People failed toprove intent.
Defendant's remaining claim does not warrant reversal. We agree with defendant thata number of the statements contained in text message conversations recovered from thecodefendant's cell phone were nonhearsay, and therefore should have been admitted.However, the error was harmless, particularly because the court admitted into evidencetwo similar messages and admission of the additional messages would not have affectedthe verdict.
Similarly, the error did not rise to the level of depriving defendant of his right topresent a defense (see generally Chambers v Mississippi, 410 US 284, 294[1973]). Concur—Gonzalez, P.J., Mazzarelli, Andrias and DeGrasse, JJ.