Summary
holding that a defendant constructively possessed narcotics because the narcotics were in plain view on the floor of the room the officers found the defendant in when they executed a search warrant
Summary of this case from Haskins v. City of N.Y.Opinion
No. 191 SSM 24.
Decided September 15, 2009.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered February 19, 2009. The Appellate Division (1) reversed, on the law, an order of the Supreme Court, New York County (Laura A. Ward, J.), which had granted defendant's motion to dismiss counts two and three of an indictment charging defendant with criminal possession of a controlled substance in the third and fourth degrees, respectively, (2) denied the motion, and (3) reinstated the counts. People v Mayo, 59 AD3d 250, affirmed.
Center for Appellate Litigation, New York City ( Robert S. Dean of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York City ( Justin K. Wechsler of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed. The evidence presented to the grand jury was legally sufficient to establish that defendant constructively possessed 96 glassine bags containing crack/cocaine recovered from underneath clothing on an apartment's bedroom floor. Specifically, there was evidence that when the police unexpectedly arrived at the apartment, defendant was getting dressed in the apartment's small 8 foot by 10 foot bedroom; that his 18-month-old child was present in the apartment; that a plastic bag containing 47 small glassine bags containing crack/cocaine was in plain view on the bedroom dresser; that the additional 96 glassine bags containing crack/cocaine recovered from the bedroom floor were packaged similarly to the drugs recovered from the dresser; and that defendant was in close proximity to the drugs on both the dresser and the floor. Further, the grand jury could have reasonably inferred that the drugs did not belong to the apartment's lessee by virtue of the fact that she volunteered the location of the additional drugs in a manner that prevented the defendant and his accomplice from overhearing. This evidence, considered together, made out a prima facie case that defendant exercised dominion and control over the contraband ( People v Manini, 79 NY2d 561, 573-575).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, in a memorandum.