PEOPLE v. BROWN (1997)

Appeal by the People from an order of the Supreme Court, Queens County (Schulman, J.), dated August 27, 1996, which, inter alia, granted that branch of the defendant's omnibus motion which was to dismiss the indictment on the ground that the evidence presented to the Grand Jury was legally insufficient.

ORDERED that the order is affirmed.

Viewed in a light most favorable to the People, the evidence presented to the Grand Jury was insufficient to support a finding that the defendant exercised dominion and control over the areas where the cocaine, paraphernalia, and handgun giving rise to the charges at issue were seized (see, People v. Manini, 79 N.Y.2d 561, 584 N.Y.S.2d 282, 594 N.E.2d 563;  People v. Scott, 206 A.D.2d 392, 614 N.Y.S.2d 739;  Penal Law § 10.00[8];  CPL 70.10 [1] ).   Thus, the evidence was legally insufficient to support a finding that the defendant constructively possessed such items (see, People v. Manini, supra;  People v. Scott, supra;  People v. Garcia, 133 A.D.2d 123, 518 N.Y.S.2d 659;  People v. Sanabria, 73 A.D.2d 696, 423 N.Y.S.2d 223).   Rather, the evidence revealed only that the defendant, who was the girlfriend of the lessee of the apartment that was the subject of a search warrant, was merely present when the contraband was discovered (see, People v. Manini, supra;  People v. Scott, supra;  People v. Sanabria, supra).   Therefore, the indictment was properly dismissed.

MEMORANDUM BY THE COURT.