People v. Hayward

213 A.D.3d 989

182 N.Y.S.3d 377

The PEOPLE of the State of New York, Respondent,

v.Codie HAYWARD, Appellant.

111781

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 17, 2022

Decided and Entered: February 2, 2023

Rural Law Center of New York, Inc., Castleton (Kelly L. Egan of counsel), for appellant.

Michael J. Poulin, District Attorney, Johnstown (Amanda M. Nellis of counsel), for respondent.

Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER

Ceresia, J. Appeal from a judgment of the County Court of Fulton County (Polly A. Hoye, J.), rendered January 25, 2019, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree.

On March 20, 2018, the police were surveilling an apartment building for drug activity. After seeing a vehicle drive away from the building, officers followed it to a nearby parking lot and ultimately took the driver – the confidential informant (hereinafter CI) in this case – into custody. The CI advised them that he had just purchased heroin from defendant. The police applied for and obtained a search warrant for two apartments in the building, which they executed later that day. Upon entering one of the apartments, they encountered defendant and other individuals, and discovered heroin, cocaine and a large quantity of cash. Defendant was thereafter charged by indictment with two counts of criminal possession of a controlled substance in the third degree relative to the cocaine and heroin, respectively (counts 1 and 2), and one count of criminal possession of a controlled substance in the fifth degree relative to the cocaine (count 3).¹ Following a jury trial, defendant was found guilty of count 2 and the reduced count 3 (see Penal Law §§ 220.03, 220.16[1] ). Defendant was sentenced, as a second felony drug offender with a prior violent felony, to a prison term of 10 years along with three years of postrelease supervision for his conviction of count 2 and a lesser concurrent term of incarceration for his conviction of the reduced count 3. Defendant appeals.

Defendant contends that his conviction for criminal possession of a controlled substance in the third degree is not supported by legally sufficient evidence and is against the weight of the evidence, because the proof did not show that he possessed a narcotic drug or that he did so with the intent to sell it. Given that defendant's motion for a trial order of dismissal of this count was not directed at the particular arguments now raised on appeal, defendant failed to preserve the legal sufficiency claim (see People v. Barzee, 190 A.D.3d 1016, 1017, 138 N.Y.S.3d 718 [3d Dept. 2021], lv denied 36 N.Y.3d 1094, 144 N.Y.S.3d 110, 167 N.E.3d 1245 [2021] ; People v. Bombard, 187 A.D.3d 1417, 1417, 133 N.Y.S.3d 669 [3d Dept. 2020] ). "Nevertheless, in reviewing defendant's challenge to the weight of the evidence, we necessarily determine whether all of the elements of the charged crime were proven beyond a reasonable doubt" ( People v. Gertz, 204 A.D.3d 1166, 1167, 166 N.Y.S.3d 739 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted], lv denied 38 N.Y.3d 1070, 171 N.Y.S.3d 434, 191 N.E.3d 386 [2022] ; see People v. Casalino, 204 A.D.3d 1078, 1079, 166 N.Y.S.3d 360 [3d Dept. 2022], lv denied 38 N.Y.3d 1070, 171 N.Y.S.3d 438, 191 N.E.3d 390 [2022] ). A weight of the evidence analysis requires us to "view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Barzee, 190 A.D.3d at 1017, 138 N.Y.S.3d 718 [internal quotation marks and citation omitted]; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). "In undertaking this analysis, great deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" ( People v. Jones, 202 A.D.3d 1285, 1286, 162 N.Y.S.3d 559 [3d Dept. 2022] [internal quotation marks and citations omitted]).

As is relevant here, "[a] person is guilty of criminal possession of a controlled substance in the third degree when he [or she] knowingly and unlawfully possesses ... a narcotic drug with intent to sell it" ( Penal Law § 220.16[1] ). Count 2 involved the possession of heroin, which is defined as a narcotic drug (see Penal Law § 220.00[7] ; Public Health Law § 3306[I][c][11] ). " ‘Possess’ means to have physical possession or otherwise to exercise dominion or control over tangible property" ( Penal Law § 10.00[8] ).

The CI testified that he initially entered the building, went to the third floor, and knocked on the door of the apartment on the right, identified at trial as apartment 3W, which he knew to be defendant's girlfriend's apartment. He heard defendant's girlfriend tell him to go away, so he knocked on the door of the apartment to the left, identified as apartment 3E, which he knew to be defendant's apartment. Defendant opened the door and, after brief discussion, took $80 from the CI and walked over to apartment 3W. Defendant entered that apartment and the CI could see defendant's girlfriend sitting with drugs in front of her. Defendant handed his girlfriend the money, shut the apartment door, opened it again and handed the CI a bundle of 10 bags of heroin.

Police officers testified that when the search warrant was executed later that day, defendant was observed sitting in the living room of apartment 3W, and they saw glassine envelopes and rubber bands in that room. Three other individuals were also present in the apartment. While searching, officers discovered six loose bags of heroin on a mattress in the back bedroom, and also found a pair of pants in that bedroom containing a bundle of heroin and over $1,700 in cash in the pockets. A detective sergeant testified that, based upon his training and experience, the glassine envelopes and rubber bands were typically used for packaging heroin for sale.

In light of this proof, a different verdict would not have been unreasonable, given that defendant was not observed in the same room where the heroin was found and other individuals were also present in the apartment. However, we find that the verdict was not against the weight of the evidence with respect to the possession and intent elements of the crime. With regard to possession, the People relied upon both the drug factory presumption as well as a theory of constructive possession. The drug factory presumption provides that "[t]he presence of a narcotic drug ... in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, 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 at the time such controlled substance was found" ( Penal Law § 220.25[2] ). "The presumption ... may apply to a defendant apprehended on the premises, but outside of the room where the drugs are found," as long as the defendant is found within close proximity to the drugs ( People v. Kims, 24 N.Y.3d 422, 434, 999 N.Y.S.2d 337, 24 N.E.3d 573 [2014] ). Thus, the presumption has been properly applied even where the defendant and the drugs are located on different floors of a building (see People v. Pressley, 294 A.D.2d 886, 887, 740 N.Y.S.2d 739 [4th Dept. 2002], lv denied 98 N.Y.2d 712, 749 N.Y.S.2d 10, 778 N.E.2d 561 [2002] ; People v. Snow, 225 A.D.2d 1031, 1031–1032, 639 N.Y.S.2d 233 [4th Dept. 1996] ). Here, bags of heroin were found in open view on the bed, which, according to photographs received in evidence, was visible from the living room where defendant was arrested.

As for constructive possession, this "requires proof that the defendant exercised dominion and control over the contraband or the area where the contraband was found" ( People v. Ruffin, 191 A.D.3d 1174, 1176, 143 N.Y.S.3d 134 [3d Dept. 2021] [internal quotation marks and citation omitted], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 515, 170 N.E.3d 389 [2021] ; see People v. Smith, 201 A.D.3d 1126, 1131, 159 N.Y.S.3d 592 [3d Dept. 2022], lv denied 38 N.Y.3d 1035, 169 N.Y.S.3d 241, 189 N.E.3d 348 [2022] ; People v. Elhadi, 304 A.D.2d 982, 984, 759 N.Y.S.2d 781 [3d Dept. 2003], lv denied 100 N.Y.2d 580, 764 N.Y.S.2d 390, 796 N.E.2d 482 [2003] ). "While mere presence in an apartment where drugs are found is insufficient to constitute constructive possession, the evidence here created a stronger link between defendant, the apartment and the drugs" ( People v. Banks, 14 A.D.3d 726, 727, 786 N.Y.S.2d 861 [3d Dept. 2005] [internal citations omitted], lv denied 4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324 [2005] ). As noted, defendant was observed in the living room of his girlfriend's apartment, located across the hall from his own. Drug packaging materials were found in the living room, and the heroin, some of which was visible, was discovered in the nearby bedroom. This evidence, together with the proof of his sale of heroin from that same apartment earlier in the day, supports a finding that defendant had the requisite dominion and control over the heroin (see People v. Paul, 202 A.D.3d 1203, 1205–1207, 162 N.Y.S.3d 207 [3d Dept. 2022], lv denied 38 N.Y.3d 1034, 169 N.Y.S.3d 224, 189 N.E.3d 331 [2022] ; People v. Cross, 25 A.D.3d 1020, 1023, 807 N.Y.S.2d 711 [3d Dept. 2006] ; People v. Banks, 14 A.D.3d at 727, 786 N.Y.S.2d 861 ). The fact that defendant did not lease the apartment and that other individuals were present "does not preclude a finding of constructive possession since...