| People v Yerian |
| 2018 NY Slip Op 04981 [163 AD3d 1045] |
| July 5, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kristina L. Yerian, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), forrespondent.
Garry, P.J. Appeals (1) from a judgment of the County Court of Cortland County (Campbell,J.), rendered July 30, 2015, upon a verdict convicting defendant of the crime of criminalpossession of a controlled substance in the second degree, and (2) from a judgment of said court,rendered November 12, 2015, which resentenced defendant.
In June 2014, police found three persons—defendant, Terry L. Maricle and Robert J.Alberts—in a residential garage where methamphetamine was being manufactured.Defendant was charged with criminal possession of a controlled substance in the third degree;Maricle and Alberts were charged with the same offense and also with unlawful manufacture ofmethamphetamine in the third degree. Following a joint jury trial, all three were convicted ascharged, and defendant was sentenced to a prison term of three years followed by five years ofpostrelease supervision.[FN1] Alberts' convictions were affirmed upon appeal(People v Alberts, 161 AD3d1298, 1306 [2018]), but Maricle's convictions were reversed on the ground that they werenot supported by legally sufficient proof that he possessed methamphetamine or the materialsnecessary to manufacture it (People vMaricle, 158 AD3d 984, 988 [2018]). Defendant now [*2]appeals.
On the day of defendant's arrest, she and Maricle visited Alberts in a garage on propertyowned by Alberts' parents. That evening, a police officer received a tip that methamphetaminewas being manufactured on the premises. He drove by the property, stopped and got out of hisvehicle when he saw light smoke wafting from a window in the garage door with a missing pane,and noticed a strong chemical odor that he recognized from previous experience as indicative ofthe presence of an active methamphetamine lab. Alberts emerged from the garage, appearing tobe nervous. The officer spoke briefly with him and left. After discussing his observations with asupervisor, the officer returned to the premises a few minutes later and noticed that the windowopening had been covered with insulation. Alberts again came out of the garage and, when askedby the officer if anyone else was present, called defendant outside. Upon hearing noises inside,the officer entered the garage, found Maricle sitting on a stool in a workshop at the rear anddirected him to leave.
In plain view on a shelf in the workshop, the officer saw a plastic soda bottle that containedfluids and appeared to be a "one-pot"—that is, a device in which methamphetamine ismanufactured by mixing various household ingredients to produce a chemical reaction. Afterabout two minutes, during which the officer continued to notice the strong chemical odor, he leftthe garage, put on a mask and reentered, again for about two minutes, to make sure that there wasno one else inside. The officer testified that, after his first visit to the premises, the chemical odorwas strong enough to "stuff up" his sinuses; once he entered the garage, he began to experience aheadache and an upset stomach that lasted for several hours. A warrant was obtained, and asearch disclosed various household items that can be used as precursors, solvents and reagents inthe manufacture of methamphetamine, as well as numerous tools used in that process, includingplastic tubing, aluminum foil and coffee filters. Additionally, Alberts left white pills that he saidwere cold medicine in a police vehicle. Subsequent testing of samples taken from the plasticbottle on the workshop shelf established the presence of methamphetamine.
Defendant told police that she and Maricle had been dating on and off for about a year. AtMaricle's request, she drove him to what she described as Alberts' home on the day of her arrest.Defendant stated that she knew Alberts as "Bob" and had been to his house only once before.Upon arriving, defendant and Maricle joined Alberts in the garage, where defendant said that shetook aspirin for a migraine headache, lay down on a couch in the workshop, covered herself withblankets, fell asleep for what she estimated was a couple of hours and awakened when policearrived. Defendant stated that she had bought pseudoephedrine—which can be used as aprecursor in manufacturing methamphetamine—"[a] couple days" before at a nearbyWalMart to treat her allergies. She said that she had last used methamphetamine more than a yearearlier, that she had never made methamphetamine, did not know how to do so and had neithermade methamphetamine nor used it on the day of her arrest. She stated that she had not been ableto smell the chemical odor because she was "clogged up" by her allergies.[FN2] [*3]Photographs of the workshop showed a couch with blankets on itnear the shelf where the one-pot was found.
As defendant was not found to be in physical possession of methamphetamine, the Peopleproceeded against her on a theory of constructive possession. Thus, it was their burden toestablish that she "exercise[d] dominion or control" over the methamphetamine in the one-pot orthe area where it was found (Penal Law § 10.00 [8]; see People v Manini,79 NY2d 561, 573 [1992]; People vLeduc, 140 AD3d 1305, 1306 [2016], lv denied 28 NY3d 932 [2016]).Defendant's mere presence in the garage where the methamphetamine was found is not enough,standing alone, to establish dominion or control (see People v Headley, 74 NY2d 858,859 [1989]; People v Maricle, 158 AD3d at 986; People v Edwards, 206 AD2d597, 597 [1994], lv denied 84 NY2d 907 [1994]). There were no other indicators thatdefendant had dominion or control over the garage or of the property where it was located; shedid not reside there, and there was no evidence that she had keys, kept belongings there orfrequently spent time there (see People v Maricle, 158 AD3d at 986-987; People vBrown, 188 AD2d 930, 931 [1992]; compare People v Alberts, 161 AD3d at1300-1301). The People argue that the couch where defendant said she was napping was near theshelf where the one-pot containing methamphetamine was found (see e.g. People v Carpenter, 51 AD3d1149, 1150 [2008], lv denied 11 NY3d 786 [2008]), and they emphasize theone-pot's presence in plain view, the smoke and chemical odor noticed by the police officer andthe presence in the garage of various substances and tools used to produce methamphetamine.However, knowledge of the presence of an illegal substance does not, without more, meet thePeople's burden to demonstrate that a defendant "had the ability and intent to exercisedominion or control over the contraband" (People v Burns, 17 AD3d 709, 711 [2005] [emphasis added;internal quotation marks and citations omitted]; see People v Wheeler, 159 AD3d 1138, 1143-1144 [2018]). Here,the People failed to present evidence of such ability or intent.
Contrary to the People's assertions, defendant's statement to police that she had purchasedpseudoephedrine a couple of days before her arrest did not establish her dominion or control overthe methamphetamine found in the garage. The purchase might have been significant to the issueof defendant's criminal intent if, like Maricle and Alberts, she had been charged with unlawfulmanufacture of methamphetamine. However, she was charged solely with criminal possession ofthe methamphetamine found in the garage, which, as already discussed, required the People toestablish her dominion or control over that substance. Pseudoephedrine itself is notillegal to purchase, and the People presented no evidence—such as receipts, packaging ora codefendant's testimony—that might have shown that the pseudoephedrine that shepurchased was actually present in the garage, had been used to produce the methamphetamine orwas otherwise linked to that substance and, thus, given rise to an inference that defendant haddominion or control over the methamphetamine she was charged with possessing.
[*4] Although this Court has held that an inference of dominionor control over a controlled substance "could possibly" be supported by evidence of a defendant'sprior use of the drug (People v Maricle, 158 AD3d at 988), no such inference can bedrawn from defendant's admitted prior use of methamphetamine in the circumstances presentedhere. Despite the lengthy period of time between her prior use and her arrest, the People arguethat this evidence demonstrates her familiarity with the appearance of the drug. However, thetestimony established that the substance in the one-pot was not necessarily recognizable asmethamphetamine to a prior user of the drug, as it was not yet in usable form. According to apolice officer with specialized training in dealing with methamphetamine labs who participatedin the search of the premises, the methamphetamine in the one-pot was still in suspension in thebottle's liquid contents and had not yet been subjected to the last steps in the manufacturingprocess. The officer acknowledged that he could not tell whether methamphetamine was presentsimply by looking at the container, that an average person would not be able to make thatdetermination, and that negative test results had been obtained from other substances in thegarage that he had collected during the search because he suspected that they containedmethamphetamine (see id. at 987). Further, the officer who testified about the chemicalodor in the garage said that the smell was similar to that of paint thinner, acknowledged that paintthinner is commonly found in garages and stated that he was able to recognize the smell as that ofan active methamphetamine lab because of his professional experience. In the absence ofevidence that defendant had experience in the manufacture of methamphetamine or wasotherwise familiar with its appearance in a one-pot or the process of producing it, neither thepresence of the one-pot near the couch nor that of the batteries, drain opener and other substancesand tools that were found in the garage—all of which were legal to own and were mixedwith innocuous household items all over the garage—was sufficient to give rise to aninference that defendant had dominion or control over the methamphetamine that proved to bepresent in the one-pot. Thus, "the People failed to demonstrate that defendant exercised dominionor control over lab equipment, precursors, reagents, solvents or substances containingmethamphetamine," and the evidence of knowing possession is legally insufficient to support herconviction (id. at 988; seePeople v Huertas, 32 AD3d 795, 795 [2006]; People v Thompson, 214 AD2d763, 764 [1995]; People v Edwards, 206 AD2d at 597). Accordingly, the indictment mustbe dismissed.
Defendant's remaining arguments are rendered academic by this determination.
McCarthy, Lynch, Devine and Mulvey, JJ., concur. Ordered that the judgments are reversed,on the law, and indictment dismissed.
Footnote 1:An initial error in the length ofdefendant's term of postrelease supervision was corrected upon resentencing.
Footnote 2:Contrary to defendant'scontention, the admission of testimony about her statement to police did not violate CountyCourt's Molineux ruling. The ruling had precluded the admission of a report from anational database indicating that defendant had purchased a decongestant and exchanged it forSudafed on the day before her arrest, but did not bar the admission of any part of her statement.Defendant's related argument that the part of her statement describing her priormethamphetamine use should have been excluded as unduly prejudicial is unpreserved, asdefendant concededly made no such claim at trial (see People v Murray, 155 AD3d 1106, 1110-1111 [2017], lvdenied 31 NY3d 1015 [2018]).