Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or about April 19, 2007, which granted defendant's motion to dismiss counts two and three of the indictment charging, respectively, criminal possession of a controlled substance in the third degree (Penal Law § 220.16) and criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09), reversed, on the law, the motion denied, and the counts reinstated.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Friedman, J.P., McGuire, Acosta, DeGrasse, Freedman, JJ.
The evidence before the grand jury was essentially as follows. At about 12:30 A.M. on December 28, 2006, Detective Payne and other police officers "closely followed" in "hot pursuit" a suspect in a crime, a man who had run into apartment 6 of a building in Brooklyn. After entering the apartment, a railroad flat with two adjoining bedrooms, Detective Payne moved past the living room and saw Leola Nimmons emerging from the back bedroom. Entering that bedroom, a "small" room that was approximately 8 feet by 10 feet, Detective Payne saw defendant putting on his pants; John Bosmond, defendant's father, was sitting on the bed. On a dresser in the bedroom, in plain view, was a clear bag holding 47 small lime green ziploc bags containing a white, rocky substance. Another adult, a woman, and three children were in the living room. One of the children, an 18-month-old, was defendant's child; the other two children were the children of a neighbor. The apartment was "filthy"; empty ziploc bags were in the kitchen and bathroom and "all over the place" in the living room. The empty ziploc bags differed from the lime green ones only with respect to their color; they were "brand new" and "ready for packaging."
In their brief, the People inexplicably state that the man who ran into the apartment was Clarence Saunders. However, the only witness who testified before the grand jury, Detective Payne, stated that two men were in the apartment, defendant and John Bosmond. Thus, from the evidence before the grand jury it is clear that the man who ran into the apartment was either defendant or Bosmond. Accordingly, the dissent errs in stating that "[t]here is no indication in the record whether this man was arrested or even found in the apartment." As Detective Payne testified that defendant was putting his pants on when he entered the bedroom, it is reasonable to infer that Bosmond was the man who ran into the apartment. Our analysis, however, does not depend on that inference.
After defendant and Bosmond were taken out of the apartment, the police officers were talking about the Administration for Children's Services taking the children from the apartment on account of the drug parapernalia, i.e., the empty glassine envelopes, in the living room. With that, Nimmons whispered to Detective Payne that she wanted to talk to him. She went on to say, "I know what you're here for" and, pointing to a spot on the floor of the bedroom, she stated, "It's on the floor right here." Under a pair of men's jeans were two plastic bags, each of which contained small ziploc bags. One of the bags contained 37 and the other contained 59 ziploc bags; each bag also contained a white rocky substance. The jeans completely covered the two plastic bags. In addition to the jeans, there were clothes all over the floor.*fn1
The small ziploc bags inside the two plastic bags also were lime green in color. These 96 ziploc bags in the two plastic bags "matched" the 47 ziploc bags on the dresser in the same room. Subsequent field and laboratory testing revealed that the 143 ziploc bags contained cocaine with a net weight of at least 1/8th ounce and 11.7 grains. Nimmons was the legal tenant of the apartment and the girlfriend of defendant's father. When asked if he knew whether defendant or his father lived in the apartment, Detective Payne answered, "They do not." When she pointed to where the two plastic bags were on the floor, Nimmons did not say whose drugs they were.
The first count of the indictment charged defendant and his father with criminal possession of a controlled substance in the third degree (Penal Law § 220.16) for possessing the 47 ziploc bags of cocaine in plain view on the dresser. This count was premised on the statutory room presumption, which provides that the presence of narcotics "in open view in a room, other than a public place, under circumstances evincing an intent to . . . package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance" (Penal Law § 220.25). On the basis of this presumption, "the jury is authorized . . . to draw from presence of the defendants . . . the logical inference that they were guilty of criminal possession of narcotics (People v Daniels, 37 NY2d 624, 631 ). As the cocaine that is the subject of the second count, contained in the 96 ziploc bags in the two plastic bags, was not in open view but were under the jeans, the room presumption does not apply to that count. The grand jury nonetheless charged defendant and his father with possessing the 96 ziploc bags of cocaine. The question on this appeal is whether the People presented legally sufficient evidence that defendant was in constructive possession of the 96 ziploc bags. If so, the third count of the indictment - which alleges that defendant and his father possessed one eighth of an ounce or more of cocaine on account of the combined weight of all 143 ziploc bags - also is supported by legally sufficient evidence.
The controlling legal standards are clear. To establish constructive possession, "the People must show 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 NY2d 561, 573  [internal quotation marks omitted]). Legally sufficient evidence "means simply a prima facie case, not proof beyond a reasonable doubt" (People v Swamp, 84 NY2d 725, 730 ). In determining the legal sufficiency of the evidence before the grand jury, "[t]he reviewing court must consider whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted - and deferring all questions as to the weight or quality of the evidence - would warrant conviction" (id.). "That other, innocent inferences could possibly be drawn from the facts [presented] is irrelevant on this pleading stage inquiry, as long as the Grand Jury could rationally have drawn the guilty inference" (People v Deegan, 69 NY2d 976, 979 ).
Pursuant to the room presumption, it unquestionably was reasonable for the grand jury to conclude that defendant possessed the 47 ziploc bags of cocaine in plain view on the dresser. On the evidence before it, the grand jury could rationally have drawn the guilty inference that defendant also possessed the contents of the two plastic bags under the jeans. That inference is rational for numerous reasons. In the first place, the 96 ziploc bags of cocaine in the plastic bags under the jeans were the same green color as the 47 ziploc bags and defendant was in close proximity to the bags of cocaine under the jeans as well as the bags of cocaine on the dresser. The room, moreover, was a small one in the rear of the apartment and only defendant, his father and Nimmons were in the room. Thus, the universe of persons who might have dominion and control over the 96 ziploc bags under the jeans is quite small, as it comprised at most only four persons - the three adults in the bedroom and the woman in the living room. On these facts, we think it entirely rational to infer that the persons who possessed the 47 green ziploc bags of cocaine also possessed the 97 green ziploc bags of cocaine.
In addition, to the extent a reasonable inference can be drawn that Nimmons did not exercise dominion and control over the 96 ziploc bags, that would strengthen the inference that the other two persons in close proximity to the 96 ziploc bags did so. We think the grand jury rationally could infer that the person who alerted the police to the presence of the 96 ziploc bags of cocaine did not exercise dominion and control over them. That another inference could be drawn from the fact that Nimmons alerted the police to the additional cocaine is of no consequence (see Deegan, supra).
To be sure, Nimmons was the lessee of the apartment and Detective Payne testified that defendant and his father did not live in the apartment. Defendant's connection to the apartment, however, was far from tenuous. When the police entered the bedroom after midnight, defendant was putting on his pants, which is hardly typical conduct of a casual visitor. And, as noted, Nimmons was the girlfriend of defendant's father, and defendant's own young child was in the living room. Finally, the guilty inference is supported as well by the presence in the apartment of so many other "brand new" ziploc bags "ready for packaging."
The dissent untenably asserts that "the evidence before the grand jury showed no more than defendant's mere presence in an apartment where drugs were found." Defendant was in a small room in the apartment in close proximity not only to the 47 small ziploc bags containing cocaine that were in plain view, but to the 96 ziploc bags containing cocaine that were under a pair of men's jeans (not, contrary to the dissent, under other clothing as well). All 96 of the ziploc bags were of the same, lime green color. The dissent essentially glosses over this important fact, stressing instead that the other ziploc bags, which it acknowledges were "strewn throughout the apartment," were of a different color. To ...