PEOPLE v. PICHARDO (2006)

 Defendant appeals from a judgment convicting him, following a jury trial, of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ).   Contrary to the contention of defendant, the evidence is legally sufficient to support the conviction in this circumstantial evidence case (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “It is well settled that, even in circumstantial evidence cases, the standard for appellate review of legal sufficiency issues is ‘whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the [factfinder] on the basis of the evidence at trial, viewed in the light most favorable to the People’ ” (People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396, quoting People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367;  see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Where, as here, there is no evidence that defendant actually possessed the controlled substance, the People must establish that defendant “exercised ‘dominion or control’ over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized” (People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563;  see § 10.00[8];  People v. Gautreaux-Perez, 31 A.D.3d 1209, 817 N.Y.S.2d 839).   We conclude that there is a valid line of reasoning and permissible inferences to support the jury's conclusion that defendant had constructive possession of cocaine found in the trunk of a vehicle that was located in the garage attached to defendant's residence.   Also contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Reversal is required, however, because Supreme Court failed to give a limiting instruction with respect to the statement of a nontestifying codefendant (see generally Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476).   Even assuming, arguendo, that the statement was admissible, we note that, as the Supreme Court has written, “the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when ․ the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence” (Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 [emphasis added];  see People v. Glisson, 260 A.D.2d 245, 245-246, 689 N.Y.S.2d 38, lv. denied 93 N.Y.2d 924, 693 N.Y.S.2d 508, 715 N.E.2d 511, 93 N.Y.2d 1002, 695 N.Y.S.2d 748, 717 N.E.2d 1085;  People v. Chalk, 199 A.D.2d 813, 814, 606 N.Y.S.2d 386;  People v. Davis, 199 A.D.2d 61, 605 N.Y.S.2d 244, lv. denied 83 N.Y.2d 804, 611 N.Y.S.2d 140, 633 N.E.2d 495, cert. denied 513 U.S. 863, 115 S.Ct. 178, 130 L.Ed.2d 113).   Although defendant did not request a limiting instruction, we conclude under the circumstances of this case that the failure to give such an instruction is a fundamental error that warrants reversal and a new trial (see People v. Geoghegan, 68 A.D.2d 279, 284, 416 N.Y.S.2d 802, affd. 51 N.Y.2d 45, 431 N.Y.S.2d 502, 409 N.E.2d 975;  see also People v. Peller, 291 N.Y. 438, 446-448, 52 N.E.2d 939).

Based on our determination, we see no need to address defendant's remaining contentions.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law and a new trial is granted.

MEMORANDUM: