PEOPLE v. PONDER (2021)

MEMORANDUM AND ORDER

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 two counts 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 the fourth degree (§ 220.09 [1]), one count of criminal possession of marihuana in the third degree (§ 221.20), and two counts of criminally using drug paraphernalia in the second degree (§ 220.50 [2], [3]), defendant contends that the verdict is against the weight of the evidence with respect to his constructive possession of drugs and other items recovered from the apartment in which he was arrested following the execution of a search warrant. We agree.

Where there is no evidence that the defendant actually possessed the controlled substance or drug paraphernalia, the People are required to establish that the 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 [1992]; see Penal Law § 10.00 [8]; People v. Williams, 162 A.D.3d 1544, 1545, 77 N.Y.S.3d 592 [4th Dept. 2018]). The People may establish constructive possession by circumstantial evidence (see People v. Torres, 68 N.Y.2d 677, 678-679, 505 N.Y.S.2d 595, 496 N.E.2d 684 [1986]; People v. Boyd, 145 A.D.3d 1481, 1481-1482, 43 N.Y.S.3d 641 [4th Dept. 2016], lv denied 29 N.Y.3d 947, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017]), but a defendant's mere presence in the area in which contraband is discovered is insufficient to establish constructive possession (see Boyd, 145 A.D.3d at 1482, 43 N.Y.S.3d 641).

Here, we conclude that an acquittal would not have been unreasonable and, upon our independent review of the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we further conclude that the verdict is against the weight of the evidence inasmuch as Supreme Court was not justified in finding beyond a reasonable doubt that defendant possessed the drugs or drug paraphernalia in question (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Although defendant was present in the apartment at the time the police executed the search warrant, no other evidence was presented “to establish that defendant was an occupant of the apartment or that he regularly frequented it” (People v. Swain, 241 A.D.2d 695, 696, 660 N.Y.S.2d 199 [3d Dept. 1997]). Two of the police officers testified that they did not discover anything that belonged to defendant on the premises. The clothing, cell phone, and identification found on the premises belonged instead to other 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 defendant admitted that he had been at the apartment on one other occasion, the evidence did not otherwise specifically connect defendant to the apartment in which the contraband was found. We thus conclude that the weight of the evidence does not support a finding that defendant “exercised dominion and control over the [contraband] by a sufficient level of control over the area in which [it was] found” (People v. Burns, 17 A.D.3d 709, 710, 792 N.Y.S.2d 700 [3d Dept. 2005] [internal quotation marks omitted]; see People v. Hunt, 185 A.D.3d 1531, 1531, 127 N.Y.S.3d 674 [4th Dept. 2020]). We therefore reverse the judgment and dismiss the indictment against defendant.

In light of our determination, we do not address defendant's remaining contention.