| People v Cota |
| 2021 NY Slip Op 06574 [199 AD3d 1237] |
| November 24, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tyler J. Cota, Appellant. |
Kathy Manley, Selkirk, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Philip A. Alvaro of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),rendered July 20, 2018, upon a verdict convicting defendant of the crime of criminal possessionof a controlled substance in the third degree.
Defendant was charged by indictment with criminal possession of a controlled substance inthe third degree and criminal possession of a weapon in the second degree stemming from anincident where he was in his sister's apartment and a gun and crack cocaine, among other things,were discovered in a bedroom therein. Following a jury trial, defendant was convicted ofcriminal possession of a controlled substance in the third degree and acquitted of the remainingcharge. Defendant was thereafter sentenced to a term of imprisonment, to be followed by a periodof postrelease supervision. Defendant appeals. We reverse.
Defendant's argument that the verdict was against the weight of the evidence centers on thenotion that the evidence failed to show that he constructively possessed the discovered crackcocaine. "[T]o support a charge that a defendant was in constructive possession of tangibleproperty, the People must show that the defendant exercised dominion or control over theproperty by a sufficient level of control over the area in which the contraband is found or over theperson from whom the contraband is seized" (People v Manini, 79 NY2d 561, 573 [1992][internal quotation marks and citations omitted]; see People v Maricle, 158 AD3d 984, 986 [2018]). A defendant'smere presence in an apartment where the contraband is discovered (see People v Headley,74 NY2d 858, 859 [1989]; People vYerian, 163 AD3d 1045, 1047 [2018]; People v Edwards, 206 AD2d 597, 597[1994], lv denied 84 NY2d 907 [1994]) or mere knowledge that contraband is present(see People v Maricle, 158 AD3d at 986; People v Edwards, 206 AD2d at 598)does not prove constructive possession.
The record discloses that an officer, his partner and a trainee officer, all of whom were withthe City of Elmira Police Department, went to an apartment in response to a domesticdisturbance call. Defendant's sister, the apartment's owner, informed the officers upon theirarrival outside of the apartment building that she wanted defendant and his friend to leave. Afterthe trainee knocked on the apartment door, the door was locked with a dead bolt. The partnerwent around the back side of the building and then defendant opened the apartment door. Thetrainee testified that defendant came outside of the apartment and was advised that he was notsupposed to be there. Defendant went back inside, the officers followed him inside anddefendant's friend was in the living room. While inside, the officers learned from the partner thatsomeone had dropped suspected narcotics out of the apartment window. The officer and thetrainee then secured defendant and his friend and searched the apartment with the sister'sconsent.
The officer testified that, in the living room, he found [*2]asmall bag of marihuana under the couch cushion and a red backpack that had inside what herecognized to be drug-packaging materials. The red backpack belonged to defendant, and theofficer stated that he did not find any drugs inside of it. The officer and the trainee then searchedthe south bedroom, where an identification card bearing defendant's name was found in a dresserdrawer and narcotics packaging materials and knives were found on top of the dresser. Accordingto the officer, one of the knives had a white powdery residue on it but he also admitted that theresidue was not tested. The officer also found a sandwich bag in a closet containing what hebelieved to be powdered cocaine. A camouflage backpack belonging to defendant's friend wasalso in the south bedroom, and there were scales and plastic packaging materials in it. The traineetestified that, when he searched the north bedroom—the sister's bedroom—he saw apile of laundry and, when he moved articles of female clothing aside with his foot, he found abag of crack cocaine under it. A digital scale was also found in the north bedroom in the vicinityof the crack cocaine.
While the apartment was being searched, defendant was taken to the policestation.[FN1] The officereventually interviewed defendant, who informed the officer that he arrived at his sister'sapartment 10 minutes before law enforcement had arrived. According to the officer, defendantsaid that he went to his sister's apartment almost on a daily basis and stayed there for varyingperiods of time but that he lived somewhere else. The officer also stated that defendant deniedhaving knowledge of drugs being in the apartment.
Defendant's friend testified on defendant's behalf and stated that, at the time the officersknocked on the door, he was in the north bedroom and defendant was in the living room. Thefriend admitted to throwing drugs out the window and possessing the crack cocaine in theapartment. The friend also testified that defendant had no knowledge that drugs were in theapartment and that he did not see defendant possess any drugs while therein.
A contrary result would not have been unreasonable given the testimony of defendant's friendthat the crack cocaine was his and that he threw some out of the window (see People v Edwards, 39 AD3d1078, 1079 [2007]). That said, viewing the evidence in a neutral light and weighing therelative probative force of the proof, the jury's determination that defendant constructivelypossessed the crack cocaine was not supported by the weight of the evidence. The crack cocainewas not discovered in the same room as defendant or near him. Indeed, the officer testified oncross-examination that he did not find any drugs near defendant. Rather, the crack cocaine wasfound in the north bedroom, i.e., his sister's bedroom. There was no proof indicating that any ofdefendant's personal belongings were in the north bedroom (compare People v Buchanan,95 AD3d [*3]1433, 1434-1435 [2012], lv denied 22NY3d 1039 [2013]). Moreover, the crack cocaine was not seen in open view but insteadunderneath a pile of female clothes. Even accepting that defendant was a daily visitor to hissister's apartment, the proof does not establish that he resided there or that he exercised anydominion or control over any part of it (see People v Butts, 177 AD2d 782, 784[1991]).
The People point to the fact that drug packaging materials and equipment were foundthroughout the apartment. The one scale that was in open view, however, was located in the northbedroom, and the remaining scales were found in the friend's camouflage backpack.Notwithstanding the discovery of plastic bags in the living room and both bedrooms, as well asthe amount of cash found on defendant and the discovery of an identification card in the southbedroom, and even if the testimony of the friend is deemed unworthy of belief, the trial evidence,when viewed in a neutral light, does not establish beyond a reasonable doubt that defendantconstructively possessed the crack cocaine found in the north bedroom (see People vEdwards, 39 AD3d at 1080). Accordingly, the verdict was against the weight of the evidence(see People v Ponder, 191 AD3d1409, 1410-1411 [2021]; People vOldacre, 53 AD3d 675, 679 [2008]; People v Davis, 153 AD2d 949, 951 [1989],lv denied 75 NY2d 769 [1989]; compare People v Echavarria, 53 AD3d 859, 862 [2008], lvdenied 11 NY3d 832 [2008]).
To the extent that the People rely upon the drug factory presumption (see Penal Law§ 220.25 [2]), there is no indication in the record that the People proceeded on thistheory[FN2] or requestedthat the drug factory presumption be charged to the jury. As such, the People cannot rely on thistheory for the first time on appeal (seePeople v Hutchins, 136 AD3d 1148, 1150 n 1 [2016]). Based upon our determinationherein, defendant's remaining contentions are academic.
Garry, P.J., Lynch, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis reversed, on the law, and indictment dismissed.
Footnote 1:A search of defendant revealedover $2,000 in cash on him.
Footnote 2:During summation, theprosecutor remarked that constructive possession was "precisely the theory of the People's case."