People v. Webb

179 A.D.2d 708

Opinion

On March 15, 1988, the police executed a search warrant issued for the premises located at 86-52 126th Street in Queens, which contained a restaurant and fish store on the ground floor and various offices and living quarters on the second floor. The police found a plastic bag containing marihuana behind an armchair in a room resembling a living room on the second floor and arrested several individuals on the premises and in an adjacent grocery store, including the defendant and his two brothers. Based on the discovery of the contraband, Barrington Webb, the operator of the fish store and restaurant, and his brothers, Leonard and Kenneth Webb, who operated the grocery store, were each convicted of one count of criminal possession of marihuana in the third degree.

On appeal, the defendant contends that the People failed to establish his guilt of the crime beyond a reasonable doubt. We agree. At trial, there was uncontroverted testimony that in addition to the defendant and his brothers, several store employees and two tenants who resided on the second floor, had access to the general area where the marihuana was found. Moreover, the defendant’s presence at the time he was arrested in the adjacent grocery store was insufficient to establish that the defendant exercised dominion and control over the marihuana, which is necessary to establish constructive possession (see, People v Webb, 179 AD2d 709 [decided herewith]; People v Webb, 179 AD2d 707 [decided herewith]; People v Garcia, 133 AD2d 123).

In view of our determination, we do not reach the other issues raised by the defendant. Kunzeman, J. P., Balletta, Miller and Ritter, JJ., concur.