People v. Francis

172 A.D.2d 342, 569 N.Y.S.2d 403, 1991 N.Y. App. Div. LEXIS 4977

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 23, 1991
• Status: Published

Opinions

Judgement of the Supreme Court, New York County (Herbert Altman, J.), rendered on December 21, 1988, convicting defendant, following a jury trial, of criminal possession of a controlled substance in the fourth degree and sentencing him, as a predicate felon, to an indeterminate term of imprisonment of from three to six years, is affirmed.

The evidence presented herein, when viewed, as it must be, in the light most favorable to the prosecution (People v Contes, 60 NY2d 620), was legally sufficient to enable the members of the jury to have determined that the essential elements of the crime had been established beyond a reasonable doubt, including the fact that defendant was in constructive possession of the cocaine in question. In that regard, the drugs were recovered from a vehicle which he had been observed driving a week earlier, for which he possessed the registration and insurance card in his pocket and which he was standing beside when apprehended. According to defendant’s parole officer, Patricia Street, she visited his home on April 22, 1988, and noticed two cars in the backyard, one of which was black and highly decorated with headers and gold paint designs. The following month, on May 11, 1988, she was walking near her office on 42nd Street and Eight Avenue in Manhattan when she spotted defendant driving a two-door car with license plate number "ASW 96”. Although the automobile was now red, Street believed that it might be the same vehicle she had noticed in defendant’s yard because it was decorated in the same elaborate manner. Moreover, as she approached her office, she saw the car which defendant had just been driving parked in a nearby parking lot.

Defendant, who was scheduled to make a regular visit that day, was waiting for her when she reached her office. A computer check of the subject vehicle disclosed that it was registered to a Steve Hodgson but had not been reported stolen and that defendant’s driver’s license had been suspended in 1984. At his next appointment on May 18, 1988, defendant claimed, in response to Street’s inquiry, that on both that day and on May 11th, he had taken the subway to her office. In any event, at the conclusion of the meeting, which lasted from approximately 4:00 p.m. to 5:50 p.m., he immediately proceeded to the adjacent parking lot where Parole Officer Francisco Rivera observed him heading directly to the passenger side of a red Camaro whose license plate number was "ASW 96”. Rivera and other parole officers arrested him as he stood beside the automobile conversing with a woman who was sitting in the passenger seat. A package containing vials of cocaine was discovered on the floor on the driver’s side of the car.

In order to demonstrate constructive possession, the People were not required to prove that defendant physically possessed or even touched the contraband. Rather, it was necessary to show simply that the drugs were within his immediate control and reach and, therefore, were available for his use if he so desired (People v Lemmons, 40 NY2d 505, 509-510; People v Lynch, 116 AD2d 56, 61). Neither defendant’s absence from the vehicle for a period of time nor the presence of the woman in the passenger seat nor even the fact that it was not utterly inconceivable that another person might have placed the cocaine in the Camaro invalidates the jury’s verdict. Certainly, mere access by others to the area does not by itself preclude a finding of constructive possession (see, People v Torres, 68 NY2d 677; People v Diaz, 41 AD2d 382, affd 34 NY2d 689). Further, the evidence at trial was devoid of any indication concerning why or how some unknown individual simply chose defendant’s vehicle to be the receptacle of contraband. Similarly, there was no testimony that the female passenger had any connection with the drugs or was seen by the waiting parole officers or anyone else disposing of them, and the People decided against prosecuting her. As this court stated in People v Diaz (41 AD2d, supra, at 385), "the jury properly rejected the highly speculative possibility that a stranger placed such valuable property in the automobile, in defendant’s absence, without assurances of being able to retrieve it.” Consequently, the only reasonable conclusion based upon the facts educed at trial is that defendant knew that the cocaine was in the car.

Finally, the record of this case does not reveal any reversible evidentiary rulings on the part of the trial court. The Judge was certainly within his discretion in refusing to permit defendant to call witnesses to alleged drug transactions occurring in the same parking lot months after his arrest since "[e]ven where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury” (People v Scarola, 71 NY2d 769, 777). In addition, in ascertaining the weight of a controlled substance, it is the aggregate weight which is crucial rather than the pure weight of the drug (Penal Law § 220.09). Thus, the Judge appropriately disallowed defense counsel from probing whether the police chemist removed water from the cocaine prior to measuring it. We have considered defendant’s remaining contentions and deem them to be lacking in merit. Concur —Sullivan, Milonas and Smith, JJ.