| People v Forsythe |
| 2014 NY Slip Op 02204 [115 AD3d 1361] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v MarvinForsythe, Respondent. |
—[*1] Cara A. Waldman, Fairport, for defendant-respondent.
Appeal from an order of the Oneida County Court (Michael L. Dwyer, J.), datedApril 6, 2005. The order granted that part of defendant's motion seeking to dismiss theindictment.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw, that part of the motion seeking to dismiss the indictment is denied, the indictment isreinstated and the matter is remitted to Oneida County Court for further proceedings onthe indictment.
Memorandum: After defendant was charged with criminal possession of a controlledsubstance in the first degree (Penal Law § 220.21 [1]) and criminal possession of acontrolled substance in the third degree (§ 220.16 [1]), County Court granted thatpart of defendant's motion seeking to dismiss the indictment charging him with thosecrimes. The People appealed, and we reversed the order and reinstated the indictment (People v Forsythe, 20 AD3d936 [2005]). After a jury trial, defendant was convicted of attempted criminalpossession of a controlled substance in the first degree (§§ 110.00, 220.21[1]) and attempted criminal possession of a controlled substance in the third degree(§§ 110.00, 220.16 [1]). We affirmed the judgment on direct appeal (People v Forsythe, 59 AD3d1121 [2009], lv denied 12 NY3d 816 [2009]). Defendant moved to vacatethe judgment pursuant to CPL 440.10 on the ground that he was denied his right tocounsel or his right to effective assistance of counsel on the People's interlocutory appealfrom the order in Forsythe (20 AD3d 936). The court denied the motion, and wegranted defendant permission to appeal. We converted defendant's appeal from the orderdenying his CPL 440.10 motion to a motion for a writ of error coram nobis, and grantedthe motion (People vForsythe, 105 AD3d 1430, 1431 [2013]). We therefore vacated the orders ofthis Court entered July 1, 2005 (Forsythe, 20 AD3d 936) and February 11, 2009(Forsythe, 59 AD3d 1121), and we vacated the judgment of conviction. We nowconsider the People's appeal de novo.
We agree with the People that the court erred in concluding that there was legallyinsufficient evidence before the grand jury to permit the inference that defendantconstructively possessed the drugs. On a motion to dismiss the indictment pursuant toCPL 210.20 (1) (b), "the inquiry of the reviewing court is limited to the legal sufficiencyof the evidence; the court may not examine the adequacy of the proof to establishreasonable cause" (People v Jennings, 69 [*2]NY2d 103, 115 [1986]; see People v Reyes, 75NY2d 590, 593 [1990]). The "reviewing court must consider 'whether the evidenceviewed in the light most favorable to the People, if unexplained and uncontradicted,would warrant conviction by a petit jury' " (People v Bello, 92 NY2d 523, 525[1998]; see People v Mikuszewski, 73 NY2d 407, 411 [1989]; Jennings,69 NY2d at 115). In the context of grand jury proceedings, "legal sufficiency meansprima facie proof of the crimes charged, not proof beyond a reasonable doubt"(Bello, 92 NY2d at 526). Thus, we must determine " 'whether the facts, if proven,and the inferences that logically flow from those facts supply proof of every element ofthe charged crimes,' and whether 'the [g]rand [j]ury could rationally have drawn theguilty inference' " (id.).
With respect to constructive possession, "the People must show that the defendantexercised 'dominion or control' over the property by a sufficient level of control over thearea in which the contraband is found or over the person from whom the contraband isseized" (People v Manini, 79 NY2d 561, 573 [1992]). The People may establishconstructive possession through circumstantial evidence (see People v Torres, 68NY2d 677, 678-679 [1986]).
The People presented evidence before the grand jury that a package containingcocaine was opened by an employee of the United Parcel Service (UPS) upondetermining that the address listed on the package did not exist. The police were called,and they seized the package. Later, a customer called UPS looking for the package andgave the correct address. The police delivered the package to that address and arrested awoman who resided at that address and signed for the package. The police also arresteddefendant, who was observed "hanging around the front of the house" before and afterthe delivery. We conclude that the evidence before the grand jury was legally sufficientto establish that defendant exercised dominion and control over the woman who signedfor the package or over the package containing cocaine. The People presented evidencethat defendant went to the house earlier that morning looking for the package. Inaddition, the telephone number listed on the package and given by the customer whocalled UPS looking for the package was the telephone number of one of the cellulartelephones found on defendant's person at the time of his arrest.
We further agree with the People that the court erred in determining that the integrityof the grand jury proceeding was impaired when the People instructed the jurors that thewoman who signed for the package was an accomplice as a matter of law. Dismissal ofan indictment pursuant to CPL 210.20 (1) (c) is warranted "only where a defect in theindictment created a possibility of prejudice" (People v Huston, 88 NY2d 400,409 [1996]; see CPL 210.35 [5]). It is "limited to those instances whereprosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimatedecision reached by the [g]rand [j]ury" (Huston, 88 NY2d at 409). Accomplicetestimony must be supported by corroborative evidence (see CPL 60.22 [1]). Anaccomplice "means a witness in a criminal action who, according to evidence adduced insuch action, may reasonably be considered to have participated in . . . [t]heoffense charged; or . . . [a]n offense based upon the same or some of thesame facts or conduct which constitute the offense charged" (CPL 60.22 [2] [a], [b];see People v Besser, 96 NY2d 136, 147 [2001]; People v Berger, 52NY2d 214, 219 [1981]). Here, the People presented evidence that the woman who signedfor the package agreed to plead guilty to criminal facilitation in the fourth degree (PenalLaw § 115.00 [1]), and to cooperate with the police, and we therefore agree withthe People that the woman was an accomplice as a matter of law (see Besser, 96NY2d at 147). Moreover, even assuming, arguendo, that the woman was not anaccomplice as a matter of law, we cannot agree with the court that the error in soinstructing the jury prejudiced the ultimate decision reached by the grand jury.Present—Centra, J.P., Fahey, Lindley, Sconiers and Whalen, JJ.