People v. Alexander

• Decision Date: 03 July 1989
• Citation: 152 A.D.2d 587,543 N.Y.S.2d 504
• Parties: The PEOPLE, etc., Respondent, v. Leroy ALEXANDER and Johnny Gayle, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 504

543 N.Y.S.2d 504

152 A.D.2d 587

The PEOPLE, etc., Respondent, v. Leroy ALEXANDER and Johnny Gayle, Appellants.

Supreme Court, Appellate Division Second Department.

July 3, 1989.

Schwartz and DiBlasi, Forest Hills (Barry A. Schwartz, on the brief), for appellants.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Nikki Kowalski and Melissa Harrison, of counsel), for respondent.

Before LAWRENCE, J.P., and KUNZEMAN, KOOPER and SPATT, JJ.

MEMORANDUM BY THE COURT.

Reargument of appeals by the defendants Leroy Alexander and Johnny Gayle from two judgments (one as to each of them) of the Supreme Court, Kings County (Slavin, J.), each rendered November 19, 1986, which were determined by decision and order of this court dated February 8, 1988 (People v. Alexander, 137 A.D.2d 624, 524 N.Y.S.2d 512). The motions of the defendants Alexander and Gayle to reargue and to supplement their motion to reargue were previously granted by this court and the parties were directed to serve and file their briefs.

ORDERED that upon reargument, the decision and order of this court dated February 8, 1988, insofar as it pertains to the movants Leroy Alexander and Johnny Gayle, is recalled and vacated, and the following decision and order is substituted therefor.

Appeal by the defendants Leroy Alexander and Johnny Gayle from two judgments (one as to each of them) of the Supreme Court, Kings County (Slavin, J.), both rendered November 19, 1986, convicting them of criminal possession of a controlled substance in the third degree, upon jury verdicts, and imposing sentences.

ORDERED that the judgments are reversed, on the law, and a new trial is ordered with respect to both defendants. The facts have been considered and are determined to have been established.

The defendants were apprehended in the living room of an apartment. The People's witnesses testified that in this modified railroad-type apartment, the kitchen could be seen from the living room and the defendants were seated on a couch facing the kitchen when the police arrived. Upon entering the apartment and in open view on the kitchen counters, the police found, among other things, three scales, bags of white powder later identified as cocaine, manila envelopes and plastic envelopes.

Under these circumstances, we find that the evidence amply supported the defendants' convictions of criminal possession of a controlled substance in the third degree. When narcotics are found in open view in a room, other than a public place, "under circumstances evincing an intent to unlawfully mix * * * package or otherwise prepare for sale such controlled substance[s]", every person in close proximity to the narcotics at the time of their discovery is presumed to have knowingly possessed them (Penal Law § 220.25[2]. Although this presumption is rebuttable, in this case, the jury could properly, upon all the evidence, draw the inference of criminal possession from the defendants' presence at the place of discovery (see, People v. Daniels, 37 N.Y.2d 624, 376 N.Y.S.2d 436, 339 N.E.2d 139; People v. Hylton, 125 A.D.2d 409, 509 N.Y.S.2d 128). We note that close proximity does not require that the defendants be found in the same room as the narcotics (see, People v. Daniels, supra, at 624, 376 N.Y.S.2d 436, 339 N.E.2d 139). Further, the jury's conclusion was not against the weight of the evidence (see, CPL 470.15[5]; People v. Chandler, 121 A.D.2d 644, 503 N.Y.S.2d 875).

However, we do find that the...