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County Court, Niagara County, New York.

PEOPLE of the State of New York, v. Andrew S. RENAUD, Defendant.

Decided: September 17, 2004

Matthew J. Murphy, III, Esq., Niagara County District Attorney by Michael W. McNelis, Esq., Assistant District Attorney, of Counsel, for the People. Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP by Michael P. Stuermer, Esq., of Counsel, for the Defendant.

The defendant has made a motion requesting this Court to review the sufficiency of the grand jury minutes pursuant to Sections 210.20 and 210.30 of the New York State Criminal Procedure Law.

The question before this Court is whether the facts before the grand jury are sufficient to establish the offenses charged or any lesser-included offenses.   The test is whether the evidence, unexplained and uncontradicted, would warrant a conviction by a trial jury.

Upon a review of the grand jury minutes, the evidence presented is sufficient to support count two of the indictment (charging criminal possession of a controlled substance in the seventh degree for constructive possession of Psilocin).   The motion to dismiss or reduce this count is denied.

Count One of the indictment charges the class C-felony of criminal possession of marihuana in the first degree (for the alleged constructive possession of nearly nineteen pounds of marihuana).

A review of the grand jury minutes, together with the exhibits introduced into evidence before that body, demonstrates to this Court that Cheektowaga Police attempted to follow an evidentiary trail obtained from a confidential informant.   That trail led to one Charles McGill here in Niagara County.   The Cheektowaga authorities then coordinated with the Niagara County Drug Task Force and obtained a series of court warrants, including one authorizing the search of McGill's automobile and person.   While executing that warrant, sitting in the passenger front seat of McGill's automobile, they discovered this defendant, Andrew Renaud.   There is no indication in the grand jury presentation that the authorities in either jurisdiction had ever before heard of Andrew Renaud, or is there any evidence to suggest that Andrew Renaud had any criminal history of drug use or trafficking.

Upon searching the occupants and the vehicle, the police discovered no controlled substances on either person, but found a considerable quantity otherwise in the vehicle.   On the backseat was a duffle bag containing approximately seventeen pounds of marihuana.   On the floor in the backseat area was another bag containing approximately two additional pounds of marihuana.   In the front seat, on the floor in the passenger side (where Renaud was sitting) they discovered a yellow backpack containing a small quantity of marihuana, the Psilocin, and a “metal grinding iron.”

Andrew Renaud made no admissions to any police officer.   McGill, on the other hand, talked freely with the police and, ultimately, crafted a cooperation agreement with the authorities in exchange for lenient treatment.   McGill indicated that Andrew's brother, Brian Renaud, was the apparent mastermind of the conspiracy.   Brian was trying to get a delivery (the seventeen pounds) to his co-conspirator in Pittsburgh, a third brother named Tim Renaud.   Andrew was supposed to make the delivery, but was experiencing car problems.   While McGill (a long-time family friend) was visiting with Andrew, Brian scolded Andrew and advised him to see if McGill could provide the transportation.   McGill contended that the brothers Renaud told him of the plot and he agreed to act as the wheelman for the delivery, in exchange for a small piece of the marihuana (the two pounds on the backseat floor) and approximately five hundred dollars in cash.   McGill testified that Brian loaded the duffle bags of marihuana into his car and he and Andrew were in the process of leaving Western New York when the police stopped them.

During the initial grand jury presentation, the prosecution did not call McGill to testify.   Instead, they chose to indict based solely upon the statutory presumption of possession attributable to all persons present in an automobile found in Penal Law 220.25(1).   The defense moved to dismiss that indictment, contending both that the prosecution completely failed to charge the presumption to the grand jury and that the presumption does not legally apply to marihuana.   While the Court was in the process of considering these arguments, the prosecution represented the matter and obtained a superseding indictment under CPL 200.80.   That new indictment rendered the initial indictment subject to mandatory dismissal [see, Gold v. McShane, 74 A.D.2d 616, 425 N.Y.S.2d 341 (2nd Dept.1980) and People v. Sinistaj, 67 N.Y.2d 236, 501 N.Y.S.2d 793, 492 N.E.2d 1209 (1986) ]. This, in turn, rendered the pending motion moot, obviating the need for a decision by this Court.

Upon receipt of the new indictment, the defendant made a second motion against the sufficiency of the presentation.   This time he argues that McGill's testimony does not supply proof that the defendant knowingly possessed the marihuana, a requisite element of the charged crime.   He also contends that the presentation failed to corroborate the testimony of McGill, who is an accomplice as a matter of law.

In response, the prosecution claimed that the grand jury testimony of the defendant's mother, Barbara Renaud, and of police officer Charles Baker, adequately corroborated the accomplice.

There are a series of issues presented for this Court's consideration.   Each of them, itemized below, will be treated in course.   The issues are:

1.  Does the statutory automobile presumption apply to marihuana?

2. Must the prosecutor charge that presumption to the grand jury in order to derive any benefit from its rule?

3. Is a co-defendant/accomplice's testimony in the grand jury sufficient to withstand a CPL 210.20 attack?

4. Must such accomplice testimony before the grand jury be corroborated?

5. If so, was it corroborated in this case?

1. Does the statutory automobile presumption apply to marihuana

 The statute reads, in relevant part:

“220.25 Criminal possession of a controlled substance;  presumption

1.  The presence of a controlled substance in an automobile is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found”

As William Donnino's Commentaries in McKinney's state, “this statute applies the presumption to all controlled substances, not simply narcotic drugs.”   [Emphasis added.]   The 1972 Interim Report of the Temporary State Commission to Evaluate the Drug Laws expressed the logic of the presumption as follows:  “We do not believe that persons transporting dealership quantities [emphasis in original] of contraband are likely to go driving around with innocent friends or that they are likely to pick up strangers.   We do not doubt that this can and does in fact occasionally happen, but because we find it more reasonable to believe that the bare presence in the vehicle is culpable, we think it reasonable to presume culpability in the direction which the proven facts already point.”   Case law appears to suggest the applicability of the presumption to marihuana [cf., Boyd v. Constantine, 81 N.Y.2d 189, 597 N.Y.S.2d 605, 613 N.E.2d 511 (1993) and People v. Bennett, 47 A.D.2d 322, 366 N.Y.S.2d 639 (1st Dept.1975) ].   Marihuana is clearly a controlled substance as defined by statute [Penal Law § 220.00(5);  Public Health Law § 3306, Schedule I(d)(13);  and see, People v. Kinnicut, 83 Misc.2d 229, 371 N.Y.S.2d 984 (Co.Ct. 1975) and Taylor v. Poole, 301 A.D.2d 712, 753 N.Y.S.2d 212 (3rd Dept.2003) ].

The argument to the contrary lies in the wording of Penal Law 220.00(5).   This provision defines “controlled substance” as any substance listed in Schedule I of Public Health Law § 3306 “other than marihuana.”   While, at first blush, this appears to rule out marihuana from the definition, this Court believes that a more careful reading suggests differently.

Penal Law § 220.25(1), as mentioned, contains the automobile presumption.   While it uses the term “controlled substance,” it does not itself directly include or exclude marihuana from that definition.   Subdivision two, however, clearly suggests that the Legislature included marihuana in their definition of controlled substances for that section dealing with presumptions when they say:  “The presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine” in a room “is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found.”  [Emphasis added.]   This Court believes that this seeming inconsistency is explained by understanding that the Legislature excluded marihuana from the definition of controlled substance for penalty purposes (viewing marihuana as worthy of less-serious penalty), but included marihuana in the definition of controlled substance for evidentiary purposes [see, People v. Morehouse, 80 Misc.2d 406, 364 N.Y.S.2d 108 (1975) and People v. Warren, 79 Misc.2d 777, 360 N.Y.S.2d 961 (1974) ]. That is to say, the definition flexes to accommodate the very different purposes of the two sections.   Recognizing this, the Legislature specifically said, in Public Health Law § 3306, Schedule I(d):  “Unless specifically excepted” hallucinogenic substances that are considered to be “controlled substances” include marihuana.  Penal Law § 220.25 does not exclude marihuana from the definition of controlled substance for the automobile presumption purposes and, as previously observed, expressly implies its inclusion.

For these reasons, I hold that the statutory automobile presumption (rebuttable and permissive as it is) does apply to marihuana in the same manner as it applies to any other controlled substance.

2. Must the prosecutor charge that presumption to the grand jury in order to derive any benefit from its rule

 Although no case was offered or found directly addressing this point, this Court believes that in the ordinary situation, the prosecution will be required to present and always should present a charge concerning the presumption in order for the grand jury to be able to utilize it in reaching their determination.  [Cf., CPL § 190.30(7) ].   It is perfectly clear that whenever the prosecution does charge the presumption, such charge must include an indication that the presumption is permissive and rebuttable [See, People v. Hester, 133 A.D.2d 302, 519 N.Y.S.2d 8 (1st Dept.1987) and People v. Williams, 136 A.D.2d 132, 526 N.Y.S.2d 581 (2nd Dept.1988) ].

In rare instances, however, the facts of a given situation may present such a compelling circumstantial inference that the failure of the prosecution to charge the statutory presumption will not eliminate the ability of the grand jury to rely upon the common sense presumption that the statute embraces.   [See, People v. Eisen, 25 N.Y.2d 1005, 305 N.Y.S.2d 994, 254 N.E.2d 6 (1969) and People v. Hyde, 302 A.D.2d 101, 754 N.Y.S.2d 11 (1st Dept.2003).]

In the present case, the marihuana found in the backseat of the car is not so directly and obviously tied to either one of the front seat occupants as to forgive the failure to specifically charge upon the statutory presumption.   In the absence of such a charge, the grand jury would not be authorized to ground a possession upon the presumption.

 The results pertaining to the contraband discovered in the yellow backpack lying directly at Defendant Renaud's feet are different.   That material was in such proximity to Renaud as to permit the grand jury to reasonably infer without the necessity of the statutory presumption charge being given that they were his belongings.   That other, innocent, inferences could possibly be drawn from these facts is irrelevant as long as the grand jury could rationally have drawn the guilty inference [People v. Deegan, 69 N.Y.2d 976, 516 N.Y.S.2d 651, 509 N.E.2d 345 (1987) ]. While it may be that the People will have a long road to travel to convince a petit jury of defendant's guilt without additional evidence, this Court's inquiry is limited to legal sufficiency.   It is not the function of a reviewing court to examine the adequacy of the proof to establish reasonable cause since that inquiry is exclusively the province of the grand jury [People v. Cedeno, 252 A.D.2d 307, 688 N.Y.S.2d 115 (1st Dept.1999) ].

The answer, then, to this issue is in two parts.   The failure of the prosecution to specifically charge the grand jury regarding the automobile presumption with respect to the nineteen pounds of marihuana discovered in the backseat area is fatal.   Not having charged the presumption, the People may not rely upon it to sustain the sufficiency of the proof presented to the grand jury on count one.

The failure to charge the presumption is not, however, fatal to the grand jury's ability to determine as they obviously did that the marihuana and Psilocin located in the yellow backpack lying directly at Defendant Renaud's feet belonged to him.

3. Is a co-defendant/accomplice's testimony in the grand jury sufficient to withstand a CPL 210.20 attack

 The proper standard for reviewing the sufficiency of the evidence to support an indictment is “legal sufficiency”, which is defined in CPL 70.10(1) as “competent evidence which, if accepted as true, would establish every element of an offense charged.”  [People v. Swamp, 84 N.Y.2d 725, 622 N.Y.S.2d 472, 646 N.E.2d 774 (1995) and People v. Jennings, 69 N.Y.2d 103, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986).]   In the context of grand jury matters, legally sufficient means prima facie, not proof beyond a reasonable doubt.  [People v. Mayo, 36 N.Y.2d 1002, 374 N.Y.S.2d 609, 337 N.E.2d 124 (1975).]   The evidence must be viewed in the light most favorable to the People.  [People v. Manini, 79 N.Y.2d 561, 584 N.Y.S.2d 282, 594 N.E.2d 563 (1992);  People v. Pelchat, 62 N.Y.2d 97, 476 N.Y.S.2d 79, 464 N.E.2d 447 (1984);  People v. Crossley, 168 A.D.2d 930, 565 N.Y.S.2d 337 (4th Dept.1990) and People v. Parker, 124 Misc.2d 772, 478 N.Y.S.2d 472 (N.Y.Co.Ct., 1984).   Also see People v. Franklin, 305 A.D.2d 613, 760 N.Y.S.2d 511 (2nd Dept.2003);  People v. Mikuszewski, 73 N.Y.2d 407, 541 N.Y.S.2d 196, 538 N.E.2d 1017 (1989) and People v. Warner-Lambert Co., 51 N.Y.2d 295, 434 N.Y.S.2d 159, 414 N.E.2d 660 (1980) cert. den. 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227.]

The defendant correctly maintains that proof of his “mere presence” in the car alone does not constitute a prima facie case [People v. Simon, 2 Misc.3d 1002(A), 784 N.Y.S.2d 923, 2003 WL 23305859, 2003 N.Y. Slip Op. 51691(U) (Crim.Ct. 2003);  People v. Brown, 240 A.D.2d 675, 659 N.Y.S.2d 82 (2nd Dept.1997) and People v. Wynn, 177 A.D.2d 1016, 578 N.Y.S.2d 36 (4th Dept.1991) ].   In this case, however, the grand jury received evidence beyond “mere presence.”   They heard the testimony of the accomplice, McGill.

McGill testified that Andrew Renaud was charged, as his role in a marihuana selling conspiracy, with the task of delivering this load of marihuana to yet a third brother participating in the criminal enterprise Tim Renaud in Pittsburgh.   Brother Brian Renaud issued that order.   Brian yelled at Andrew (who whined that his truck was in the shop and he couldn't get to Pittsburgh) and ultimately told him to get McGill to provide the wheels.   Andrew is the one who directly told McGill about the plan and asked McGill to provide the transportation to deliver the marihuana to Tim.   The discussed plan with Andrew was that McGill would be paid five or six hundred dollars to make the run with Andrew, plus he would get two of the nearly nineteen pounds of marihuana being transported.   McGill was going to remain silent, until he heard Andrew telling the police that none of the stuff in the vehicle was his.   As McGill testified:  “Well, when he got pulled over Andy kept saying none of it was his, which made me kind of angry because I've known this kid and he's trying to twist it and blame it on me and it wasn't even mine.   Two of it was mine and I knew that, but for him to say none of it was his.   So I was like fine, I'll tell them where it came from.”

This evidence far transcends “mere presence.”  [Cf., People v. Crossley, 168 A.D.2d 930, 565 N.Y.S.2d 337 (4th Dept.1990).]

4. Must such accomplice testimony before the grand jury be corroborated

The problem is that McGill, as a matter of law, is an accomplice.  Section 210.20(1)(b) CPL permits the defense to move for a dismissal of the indictment when the evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser-included offense.  Section 70.10(1) CPL defines “legally sufficient evidence” as competent evidence that, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof;  “except that such evidence is not legally sufficient when corroboration required by law is absent.”

In the context of the authority for a grand jury to indict, “reasonable cause” must be based upon “competent and admissible evidence” and must include requisite corroboration [CPL § 190.65(1) ].   In the context of a motion to dismiss an indictment, the sufficiency of the People's presentation is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury [People v. Franklin, 305 A.D.2d 613, 760 N.Y.S.2d 511 (2nd Dept.2003) ].   A petit jury would be precluded from convicting Defendant Renaud based solely upon the uncorroborated testimony of his accomplice [CPL § 60.22(1) ].

For all of these reasons, it is clear that the prosecution may not rely upon Accomplice McGill's testimony to sustain this indictment unless they presented sufficient legal corroboration evidence to the grand jury.

5. Was it corroborated in this case

Acknowledging this requirement, the prosecution claims that they did present such corroboration in the testimony of two witnesses:  the defendant's mother, Barbara Renaud, and a narcotics officer named Charles Baker.   This Court believes that contention is in error.

Section 60.22(1) CPL provides that

“[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.”

Ordinarily, the trier of fact is solely responsible for determining the credibility of witnesses.   However, the law looks askance at certain witnesses and, in order to insure fairness to the accused requires that their testimony be supported by other proof if a conviction is to be had.   This corroboration requirement exists to further considerations of public policy, and the amount of corroboration to be required varies with the policy sought to be served by the requirement.  [People v. Daniels, 37 N.Y.2d 624, 376 N.Y.S.2d 436, 339 N.E.2d 139 (1975).]   That is to say that there are different kinds of corroboration requirements in the law.

For example, until recently, a defendant could not be convicted of most sexual offenses solely on the uncorroborated testimony of the alleged victim.   It was necessary to produce additional proof, beyond the testimony of the complainant, that a sexual act had occurred, that the act was criminal in nature, and that the defendant was the person who committed the crime.   [People v. Daniels, 37 N.Y.2d 624, 376 N.Y.S.2d 436, 339 N.E.2d 139 (1975).]

At the opposite end of the scale is the requirement that a defendant cannot be convicted solely upon his own confession or admission.   It is necessary for the prosecution to come forward with additional proof that the offense charged has been committed.   The purpose of this rule is to guard against the possibility that a defendant might be convicted and jailed for a crime that never occurred.   However, the policy behind the statute is satisfied by the production of some proof, of whatever weight, that a crime was committed by someone.  [People v. Daniels, 37 N.Y.2d 624, 376 N.Y.S.2d 436, 339 N.E.2d 139 (1975).]

The corroboration requirement with respect to the testimony of accomplices occupies a middle ground.   The rule is that the required corroborative evidence must tend to connect the defendant with the commission of the offense.   This rule recognizes that accomplices may themselves be persons of disrepute, lacking the normal indicia of reliability.   Moreover, as it is with McGill, the accomplice may have purchased a reduced exposure to criminal liability by promising to implicate others.   Thus, the purpose of this aspect of the rule is to be sure that the facts, even matters that in themselves may be of seeming indifference, so harmonize with the accomplice's narrative as to have a tendency to furnish the necessary connection between the defendant and the crime.   It is not necessary to exclude to a moral certainty every hypothesis but that of wrongdoing.   All that is necessary is to connect the defendant with the crime in such a way that the jury may be reasonably satisfied that the accomplice is telling the truth.  [People v. Daniels, 37 N.Y.2d 624, 376 N.Y.S.2d 436, 339 N.E.2d 139 (1975).]

 Turning to the question of what is sufficient corroboration, a review of the cases will quickly reveal that, if the corroborative evidence is truly independent of the accomplice's testimony, it need not be substantial [People v. Breland, 83 N.Y.2d 286, 609 N.Y.S.2d 571, 631 N.E.2d 577 (1994);  People v. Spencer, 272 A.D.2d 682, 708 N.Y.S.2d 488 (3rd Dept.2000);  People v. Giguere, 261 A.D.2d 941, 690 N.Y.S.2d 354 (4th Dept.1999) and People v. Hudson, 51 N.Y.2d 233, 433 N.Y.S.2d 1004, 414 N.E.2d 385 (1980) ].   The corroboration must, however, be truly independent and may not draw its probative value from the accomplice testimony in any manner [People v. Konigsberg, 137 A.D.2d 142, 529 N.Y.S.2d 195 (3rd Dept.1988) ].   Corroborative evidence is sufficient if it connects the defendant with the crime in such a way that the jury may be reasonably satisfied that the accomplice is telling the truth.   The corroborative glue does not require independent proof of the elements of the crime to sustain a conviction;  it just has to bind the accomplice evidence to the defendant.  [People v. Giguere, 261 A.D.2d 941, 690 N.Y.S.2d 354 (4th Dept.1999).]

 Although evidence was presented to this grand jury corroborating the testimony of the accomplice that he was in a car on the way to Pittsburgh with Andrew Renaud (both Barbara Renaud and Charles Baker support this information to one degree or another), no evidence from an independent source was introduced tending to connect the defendant to the backseat marihuana [see, People v. McGrath, 262 A.D.2d 1043, 693 N.Y.S.2d 358 (4th Dept.1999) ].

It is not enough to create suspicion or to merely confirm the general credibility of the accomplice as distinguished from confirming the accomplice in such a way as to tend to connect the defendant with the commission of the crime [People v. London, 5 Misc.2d 976, 166 N.Y.S.2d 597 (Ct.Gen.Sess. 1957);  People v. Willard, 159 A.D. 19, 143 N.Y.S. 1032 (3rd Dept.1913) ].   Upon this presentation, the only way such a connection can be established is by resort to McGill's testimony.   Only he says that the backseat marihuana belongs to Andrew Renaud.   Only he mentions the three-brother conspiracy and the immediate objective of delivering marihuana to Pittsburgh.   Only he says that he agreed to supply the transportation in exchange for two pounds of the product and five hundred dollars.   Reliance may not, to any extent let alone to this extent be placed upon testimony of the accomplice to connect the defendant to the crime for to do so would be to rely on a bootstrap and eliminate the corroboration rule entirely [People v. Hudson, 51 N.Y.2d 233, 433 N.Y.S.2d 1004, 414 N.E.2d 385 (1980) and People v. Rosica, 199 A.D.2d 773, 605 N.Y.S.2d 455 (3rd Dept.1993) ].

Barbara Renaud's testimony does not mention marihuana or any criminal activity whatsoever.   It is not the type of corroboration intended by the statute [unlike that presented in such cases as People v. Martinez, 266 A.D.2d 847, 698 N.Y.S.2d 806 (4th Dept.1999) or People v. Holmes, 304 A.D.2d 1043, 758 N.Y.S.2d 212 (3rd Dept.2003) ].

Nor does Officer Baker's testimony connect Defendant Renaud to the backseat marihuana [see, People v. Dingle, 70 Misc.2d 840, 335 N.Y.S.2d 233 (Sup.Ct. 1972);  People v. Lanza II, 57 N.Y.2d 807, 455 N.Y.S.2d 592, 441 N.E.2d 1110 (1982);  People v. Lanza I, 83 A.D.2d 714, 443 N.Y.S.2d 710 (3rd Dept.1981);  People v. Brown, 240 A.D.2d 675, 659 N.Y.S.2d 82 (2nd Dept.1997);  People v. Simon, 2 Misc.3d 1002(A), 784 N.Y.S.2d 923, 2003 WL 23305859, 2003 N.Y. Slip Op. 51691(U) (Crim.Ct. 2003) and People v. Wynn, 177 A.D.2d 1016, 578 N.Y.S.2d 36 (4th Dept.1991) ].   Andrew Renaud made no admissions [cf., People v. Kestler, 201 A.D.2d 955, 607 N.Y.S.2d 823 (4th Dept.1994) and People v. Soto, 115 Misc.2d 415, 454 N.Y.S.2d 503 (Co.Ct. 1982) ].   He did not flee from the scene [cf., People v. Chamberlain, 38 A.D.2d 306, 329 N.Y.S.2d 61 (4th Dept.1972) and People v. Wynn, 177 A.D.2d 1016, 578 N.Y.S.2d 36 (4th Dept.1991) ], or otherwise engage in conduct connecting himself to the crime as reported by any non-accomplice witness [see, People v. Linkhorn, 184 A.D.2d 927, 585 N.Y.S.2d 583 (3rd Dept.1992);  People v. Conklin, 139 A.D.2d 156, 531 N.Y.S.2d 374 (3rd Dept.1988);  People v. Johnson, 188 A.D.2d 552, 591 N.Y.S.2d 453 (2nd Dept.1992) and People v. Crossley, 168 A.D.2d 930, 565 N.Y.S.2d 337 (4th Dept.1990) ].

In short, nothing connects Andrew Renaud to the backseat marihuana in this presentation but for Accomplice McGill's testimony.

For the above reasons, upon review of the grand jury minutes, count one of the indictment is dismissed and count two is sustained.