Lopez for and in Behalf of Garcia v. Curry
| Decision Date | 15 September 1978 |
| Docket Number | D,No. 182,182 |
| Citation | 583 F.2d 1188 |
| Parties | Frank A. LOPEZ, as next of friend, attorney for and in Behalf of Carmen GARCIA, Petitioner-Appellee, v. Phyllis CURRY, Correctional Superintendent, Bedford Hills Correctional Facility, Bedford Hills, New York, or anyone having custody and/or control of Carmen Garcia, Respondent-Appellant. ocket 78-2083. |
| Court | U.S. Court of Appeals — Second Circuit |
Frank A. Lopez, New York City, for petitioner-appellee.
Mark C. Rutzick, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for respondent-appellant.
Before KAUFMAN, Chief Judge, LUMBARD and MULLIGAN, Circuit Judges.
Aware of the limits of mortal knowledge, legislatures often enact statutes ordaining that proof of one fact shall imply existence of another. But the link between the proven fact and the presumed one must not be tenuous nor may it invade the factfinding province of the jury.
In this case Carmen Garcia challenges a State conviction based upon N.Y.Penal Law § 220.25(1), which declares that presence of narcotics in an automobile "is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found." Judge Stewart found the statute unconstitutional on its face and as applied to Garcia, and granted her habeas corpus petition. Although we uphold the statute, as authoritatively construed by New York State's highest court, we find that the State trial judge's instructions encroached upon the jury's duty to find proof of possession beyond a reasonable doubt. Accordingly, we affirm the judgment of the district court.
The facts necessary for an understanding of Garcia's contentions are clear from the state record, and they may be briefly limned. On September 22, 1971, New York City police received a telephone tip 1 that a gold-colored 1969 Chevrolet, bearing Florida license plates and carrying a kilogram of cocaine, would be on the Brooklyn side of the Williamsburgh Bridge that afternoon at 4:00 p. m. A flying squad of narcotics detectives intercepted such a car soon after it crossed the bridge from Manhattan to Brooklyn. At the wheel of the Chevrolet was Jose Low. Widelto Leyva occupied the seat closest to the passenger door. Between them sat Garcia.
When Detectives Raymond Viera and John McClean reached the automobile, they noticed a brown manila envelope protruding about three inches from under the right front seat, between Garcia and Leyva. Upon opening the envelope, which measured approximately 9 X 12 X 1/2 , Viera discovered two plastic packets containing a white powdery substance. As the informant had assured the authorities, the substance was almost precisely one kilogram of cocaine.
Low, Leyva, and Garcia were charged with knowing possession of a controlled substance and possession with intent to sell. They were tried together in Kings County Supreme Court before Justice Garbarino and a jury. Viera and McClean, corroborated by their partners in the arresting squad, testified to stopping the car and discovering the envelope. A chemist identified the substance in the plastic bags as cocaine, and the State rested. The only witness for the defense was Low, who testified that he had never met Garcia and Leyva before the day of the arrest and that he was driving them to Brooklyn as a favor to a friend.
The proof clearly established that all three defendants were present in the Chevrolet when the cocaine was discovered. To make the critical leap from "presence" to "knowing possession," the State relied heavily upon § 220.25(1). In his summation, Prosecutor Barra told the jury, 2
Justice Garbarino's charge echoed the prosecutor's view of the statute:
(U)pon proof of the presence of cocaine in the vehicle, and further upon proof that these three defendants were in the car with the cocaine at the time of the arrest, the Penal Law says in effect that from this evidence, each of the defendants in the automobile possessed the cocaine, knowingly possessed the cocaine. 3
The trial judge did tell the jury that the State always bears the burden of proving the defendants guilty beyond a reasonable doubt and that the presumption did not affect this burden. In addition, he told the jury that the presumption could be overcome by defense evidence. But he charged that the State was entitled to its presumption unless the rebuttal evidence was "substantial" and "create(d) a reasonable doubt in your minds that the defendants knowingly possessed this cocaine."
The jury convicted all three defendants of possession, and Garcia and Leyva but not Low of possession with intent to sell. The Appellate Division affirmed, as did the Court of Appeals, People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.2d 546 (1975). Having exhausted her state remedies, 4 Garcia brought this petition for habeas corpus. 5 Judge Stewart granted the writ, and this appeal followed.
Although the ultimate question of constitutionality in a habeas corpus case is determined by the federal courts, we must assess the statute as authoritatively construed in this case by the Court of Appeals in People v. Leyva, supra. As we understand Judge Fuchsberg's opinion, it construed the statute as creating only a permissive presumption that is, one authorizing, but not commanding, the jury to reach a certain conclusion from the proof of specified underlying facts. Even in the absence of rebuttal evidence by the defendants, the court held, "A jury is not to be told that it Must find defendants guilty if the prosecution proves that they and drugs were present in a car together; it is only to be told that it May so find." 38 N.Y.2d at 167, 379 N.Y.S.2d at 36, 341 N.E.2d at 550. Thus, if properly applied, the presumption could not possibly operate as tantamount to a directed verdict against defendants. Id. 6
The effect of § 220.25(1) is therefore the same as the presumption approved in United States v. Gainey, 380 U.S. 63, 70, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), for it "simply means that a jury may, if it sees fit, convict upon such evidence, as it shall be deemed in law sufficient to authorize a conviction, but does not require such a result." (emphasis deleted) Since the decision whether to accept or reject the conclusions indicated by the presumption is thus entirely in the hands of the jury, the judge's only role is to make certain that the jury is not afforded an opportunity to reach a verdict of guilty on an irrational basis. Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). For a presumption to meet this standard, it must "at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). 7 In making this judicial assessment, we must "weigh heavily" the legislative determination favoring the particular presumption. Id.
In enacting § 220.25(1), the New York Legislature had the benefit of a comprehensive report by the Temporary State Commission to Evaluate the Drug Laws. The Commission four state senators, three assemblymen, a judge, and a medical doctor conducted seven days of public hearings throughout the state. Its subcommittee on Narcotic Drugs held an additional six days of hearings. Based on this extensive record, the Commission rejected the possibility
that persons transporting dealership quantities of contraband are likely to go driving around with innocent friends or that they are likely to pick up strangers. We do not doubt that this can and does in fact occasionally happen, but because we find it more reasonable to believe that the bare presence in the vehicle is culpable, we think it reasonable to presume culpability in the direction which the proven facts already point.
The Legislature therefore had justification to find that those discovered in an automobile with dealership quantities of controlled substances are more likely than not to have knowing possession of the drugs. 8 Accordingly, we hold § 220.25(1) to be constitutional as applied to such large quantities of narcotics. Compare Gonzalez, supra, 442 F.2d at 710.
That § 220.25(1) is constitutional as applied to this case does not end our inquiry, however, for the jury was guided by the construction of the statute made in Justice Garbarino's courtroom. Although the Court of Appeals concluded that the jury charge "conveyed the requisite permissiveness with respect to use of a presumption and, therefore, was acceptable," 38 N.Y.2d at 171, 397 N.Y.S.2d at 39, 341 N.E.2d at 553, a careful reading of the trial judge's charge leads us to conclude otherwise.
Justice Garbarino charged that "the Penal Law says in effect that from this evidence (that both the cocaine and the defendants were present in the automobile) each of the defendants possessed the cocaine, knowingly possessed the cocaine." If the foundation was laid, he added, the state was "entitled to the presumption . . . charging them with possession."
These instructions ran afoul of the guarantee of In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970), that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Since possession "is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury." Morisette v. United States, 342 U.S. 246, 274, 72 S.Ct. 240, 255, 96 L.Ed. 288 (1952). It was, accordingly, for the jury in this case to decide not only...
To continue reading
Request your trial
-
Simmons v. Dalsheim
...to apply in reviewing the charge given at Simmons's trial. Accord, Lopez v. Curry, 454 F.Supp. 1200, 1207-08 (S.D.N.Y.), aff'd, 583 F.2d 1188 (2d Cir. 1978). Since these three decisions do not control the Court's determination whether the charge given at petitioner's trial, when considered ......
-
United States v. Sampson
...12(b) motions risks invading "the inviolable function of the jury" in our criminal justice system. See Lopez for & in Behalf of Garcia v. Curry , 583 F.2d 1188, 1192 (2d Cir. 1978). Judges can, of course, make factual determinations in matters that do not implicate the general issue of a de......
-
Bellavia v. Fogg
...(McKinney Supp. 1978-79). 5 We need hardly look further than Chief Judge Kaufman's opinion of last Term in Lopez ex rel. Garcia v. Curry, 583 F.2d 1188 (2 Cir. 1978), to sustain the constitutionality of § 220.25(1) as applied to Bellavia. Here, as in Lopez, "dealership quantities" of drugs ......
-
Guichard v. Smith
...Cupp v. Naughten, supra, 414 U.S. at 147, 94 S.Ct. at 400. In sum, any error was unquestionably harmless. Compare Garcia v. Curry, 583 F.2d 1188, 1192-93 (2 Cir. 1978). Accordingly, the petition for a writ of habeas corpus is SO ORDERED. 1 Unless otherwise indicated, page references are to ......