| People v Ayala |
| 2017 NY Slip Op 07041 [154 AD3d 1293] |
| October 6, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of The State of New York,Respondent, v Samuel Ayala, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew Dubrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), renderedNovember 20, 2014. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the third degree and criminally using drug paraphernaliain the second degree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of one countof criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]) and three counts of criminally using drug paraphernalia in the seconddegree (§ 220.50 [1]-[3]), defendant contends that, inasmuch as there was no directevidence of his constructive possession, County Court erred in refusing to provide acircumstantial evidence instruction to the jury. We agree.
While executing a search warrant in an apartment leased to defendant's girlfriend, but inwhich defendant was present, police officers found baggies of cocaine in a bedroom. The baggieswere located variously in a jacket pocket, in a dresser drawer, and on the floor behind theheadboard of the bed. None of the baggies was in plain view. The officers also recovered adilutant commonly used in the drug trade in a kitchen cabinet, numerous small baggiescommonly used in the drug trade in a kitchen cabinet and a dresser drawer in the bedroom, andthree cellular phones in a dresser drawer with one of the baggies of cocaine. On top of thedressers in the bedroom, in plain view, were a scale and a box of sandwich bags. Inside the boxof sandwich bags were a smaller scale and a credit or debit card in defendant's name. In differentlocations in the apartment, police officers recovered documents in defendant's name. One hadbeen mailed to defendant at the apartment, but a more recent document had been mailed todefendant at a different address.
Both defendant and his girlfriend were indicted for possession of the cocaine andparaphernalia. Defendant's girlfriend pleaded guilty, and the People proceeded to trial againstdefendant based on his constructive possession of the drugs and paraphernalia. At defendant'strial, however, defendant's girlfriend testified that all of the drugs were hers and that defendant,who did not live at the apartment, was unaware of her involvement in the drug trade.
We conclude that reversal is required based on the court's refusal to provide a circumstantialevidence instruction. "Constructive possession can be proven directly or circumstantially" (People v Santiago, 22 NY3d 990,992 [2013]), and "[a] circumstantial evidence charge is required [only] where the evidenceagainst a defendant is 'wholly circumstantial' " (People v Guidice, 83 NY2d 630,636 [1994]; see People v Slade, 133AD3d 1203, 1207 [2015], lv denied 26 NY3d 1150 [2016]; see also People v Hardy, 26 NY3d245, 249 [2015]). Here, although there was direct [*2]evidence of defendant's dominion and control over the apartmentbased on his presence in the apartment, "there was no direct evidence of his dominion or controlover the drugs . . . found in the apartment" (People v Brian, 84 NY2d 887,889 [1994]; see People v Spencer, 1AD3d 709, 710 [2003]). Contrary to the People's contention, the cocaine and most of theparaphernalia were not in plain view (cf.People v Downs, 21 AD3d 1414, 1414-1415 [2005], lv denied 5 NY3d 882[2005]; People v Wilson, 284 AD2d 958, 958 [2001], lv denied 96 NY2d 943[2001]). As a result, "to find that defendant had control over the contraband, the drawing of anadditional inference was required. For this reason, the circumstantial evidence charge requestedby defense counsel was required" (Spencer, 1 AD3d at 710).
We further agree with defendant that the error cannot be deemed harmless. The testimony ofdefendant's girlfriend exculpated defendant and, apart from his mere presence in the apartmentand several items bearing his name, there was no evidence linking defendant to the apartment inorder to establish constructive possession of the contraband. Thus it cannot be said that the proofof defendant's guilt is overwhelming (see generally People v Crimmins, 36 NY2d 230,241-242 [1975]). Present—Centra, J.P., Carni, Lindley, Troutman and Winslow,JJ.