| People v Brown |
| 2015 NY Slip Op 08428 [133 AD3d 772] |
| November 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Mahad Brown, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser and Ronald Zapata ofcounsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andThomas M. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Carroll, J.), rendered December 12, 2012, convicting him of criminal possession of aweapon in the third degree (three counts) and criminal possession of marijuana in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, the indictment is dismissed, andthe matter is remitted to the Supreme Court, Kings County, for further proceedingsconsistent with CPL 160.50.
On December 3, 2011, police officers executed a warrant to search an apartment inKings County. The police officers who testified at the defendant's trial (hereinafter thesearching officers) testified that before they entered the apartment, officers from theEmergency Services Unit (hereinafter the ESU) had entered the apartment, handcuffedall the adults in the apartment, and then left. The searching officers then entered theapartment and found the defendant's mother and younger brother handcuffed in the livingroom, and the defendant handcuffed on the floor of a hallway that led to two bedrooms.In one of those two bedrooms the searching officers found a woman who had beenhandcuffed, and two small children. From that bedroom the searching officers recoveredseveral firearms and a quantity of marijuana. None of the officers from the ESU testifiedat the defendant's trial, and no evidence was presented as to where the ESU officersfound the defendant when they entered the apartment. The defendant was arrested andcharged with, inter alia, several counts of criminal possession of a weapon in the thirddegree pursuant to Penal Law § 265.02 (1), and criminal possession ofmarijuana pursuant to Penal Law § 221.25.
In assessing the legal sufficiency of the evidence, "the court must determine whetherthere is any valid line of reasoning and permissible inferences which could lead a rationalperson to the conclusion reached by the jury on the basis of the evidence at trial"(People v Bleakley, 69 NY2d 490, 495 [1987]). In making this assessment, theevidence must be viewed in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]).
Here, the People contended at trial that the defendant constructively possessed theweapons and marijuana. The element of constructive possession may be established, interalia, [*2]where it is shown that the defendant exercised" 'dominion or control' " over the property by exercising a sufficient levelof control over the place where the contraband is found or over the person from whomthe contraband is seized (People v Manini, 79 NY2d 561, 573 [1992], quotingPenal Law § 10.00 [8]; see People v Arnold, 60 AD3d 960 [2009]; People vTirado, 47 AD2d 193 [1975]). "Constructive possession may be established by directevidence or by circumstantial evidence with inferences drawn from the facts presented inthe case" (People v Skyles, 266 AD2d 321, 322 [1999]; see People vBrian, 84 NY2d 887, 889 [1994]). "Where . . . the prosecution relieswholly upon circumstantial evidence to establish the guilt of the accused, thecircumstances must be satisfactorily established and must be of such a character as, iftrue, to exclude to a moral certainty every other hypothesis except that of the accused'sguilt" (People v Olivo, 120 AD2d 466, 467 [1986]; see People v Baffi, 119 AD3d952, 953 [2014]).
Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620 [1983]), it was legally insufficient to establish the possessionelements of the weapons possession and marijuana possession counts, as charged here.Although the defendant was present in the apartment when the search warrant wasexecuted, "it is settled that one's mere presence in an apartment or house wherecontraband is found does not constitute sufficient basis for a finding of constructivepossession" (People v Edwards, 206 AD2d 597, 597 [1994]; see People vSwain, 241 AD2d 695, 696 [1997]). There was no evidence specifically connectingthe defendant to the bedroom where the contraband was found, or otherwise connectingthe defendant to the contraband. Under these specific circumstances, the People failed toprove that the defendant exercised dominion and control over the contraband, andtherefore failed to prove the possession element of the counts as charged (see People v Huertas, 32 AD3d795 [2006]; People vGautreaux-Perez, 31 AD3d 1209 [2006]; People v Swain, 241 AD2d695, 696 [1997]; see also People v Manini, 79 NY2d at 572-573; People vPearson, 75 NY2d 1001, 1002 [1990]).
In light of our determination, we do not reach the defendant's remaining contentions.Balkin, J.P., Hall, Duffy and LaSalle, JJ., concur.