| People v Ponder |
| 2021 NY Slip Op 00923 [191 AD3d 1409] |
| February 11, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Keith L. Ponder, Also Known as Keith Ponders,Appellant. |
Timothy P. Donaher, Public Defender, Rochester, Hodgson Russ LLP, Buffalo (Sarah NagelMiller of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Lisa Gray of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joanne M. Winslow, J.),rendered July 14, 2015. The judgment convicted defendant upon a nonjury verdict of criminalpossession of a controlled substance in the third degree (two counts), criminal possession of acontrolled substance in the fourth degree, criminal possession of marihuana in the third degreeand criminally using drug paraphernalia in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the facts,the indictment against defendant is dismissed and the matter is remitted to Supreme Court,Monroe County, for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of twocounts of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), one count of criminal possession of a controlled substance in thefourth degree (§ 220.09 [1]), one count of criminal possession of marihuana in thethird degree (§ 221.20), and two counts of criminally using drug paraphernalia inthe second degree (§ 220.50 [2], [3]), defendant contends that the verdict is againstthe weight of the evidence with respect to his constructive possession of drugs and other itemsrecovered from the apartment in which he was arrested following the execution of a searchwarrant. We agree.
Where there is no evidence that the defendant actually possessed the controlled substance ordrug paraphernalia, the People are required to establish that the defendant "exercised 'dominionor control' over the property by a sufficient level of control over the area in which the contrabandis found or over the person from whom the contraband is seized" (People v Manini, 79NY2d 561, 573 [1992]; see Penal Law § 10.00 [8]; People v Williams, 162 AD3d1544, 1545 [4th Dept 2018]). The People may establish constructive possession bycircumstantial evidence (see People v Torres, 68 NY2d 677, 678-679 [1986]; People v Boyd, 145 AD3d 1481,1481-1482 [4th Dept 2016], lv denied 29 NY3d 947 [2017]), but a defendant's merepresence in the area in which contraband is discovered is insufficient to establish constructivepossession (see Boyd, 145 AD3d at 1482).
Here, we conclude that an acquittal would not have been unreasonable and, upon ourindependent review of the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d342, 348-349 [2007]), we further conclude that the verdict is against the weight of theevidence inasmuch as Supreme Court was not justified in finding beyond a reasonable doubt thatdefendant possessed the drugs or drug paraphernalia in question (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Although defendant was present in the apartment at thetime the police executed the search warrant, no other evidence was presented "to establish thatdefendant was an occupant of the apartment or that he regularly frequented it" (People vSwain, 241 AD2d 695, 696 [3d Dept 1997]). Two of the police officers testified that [*2]they did not discover anything that belonged to defendant on thepremises. The clothing, cell phone, and identification found on the premises belonged instead toother men who were present in the apartment during the execution of the search warrant.Photographs found on the premises included the other men but not defendant. While defendantadmitted that he had been at the apartment on one other occasion, the evidence did not otherwisespecifically connect defendant to the apartment in which the contraband was found. We thusconclude that the weight of the evidence does not support a finding that defendant "exerciseddominion or control over the [contraband] by a sufficient level of control over the area in which[it was] found" (People v Burns, 17AD3d 709, 710 [3d Dept 2005] [internal quotation marks omitted]; see People v Hunt, 185 AD3d1531, 1531 [4th Dept 2020]). We therefore reverse the judgment and dismiss the indictmentagainst defendant.
In light of our determination, we do not address defendant's remaining contention.Present—Carni, J.P., Lindley, Curran, Troutman and Bannister, JJ.