People v. Ballard

• Citation: 133 Misc.2d 584,507 N.Y.S.2d 572
• Parties: The PEOPLE of the State of New York v. Westley BALLARD, James Flint and Darryl Porter, Defendants.
• Decision Date: 15 September 1986
• Court: New York Supreme Court

Page 572

507 N.Y.S.2d 572

133 Misc.2d 584

The PEOPLE of the State of New York v. Westley BALLARD, James Flint and Darryl Porter, Defendants.

Supreme Court, New York County, Part 78.

Sept. 15, 1986.

Robert M. Morgenthau, Dist. Atty., N.Y. County, New York City by Cyrus Vance Jr., Asst. Dist. Atty., for the People.

Eric M. Sears, New York City, for Westley Ballard.

Zoltan Hankovszky, New York City, for James Flint.

Gerald J. McMahon, New York City, for Darryl Porter.

RENA K. UVILLER, Judge:

This motion to dismiss an indictment poses the recurring and troublesome question of the circumstances under which criminal possession of a weapon recovered in an automobile can be attributed to any or all of its passengers. The unique feature here is that the gun was recovered in the car's locked trunk; and while there is evidence that the occupants all knew it was there, there was no evidence that any of them had access to the trunk. Does evidence that the occupants of the car knew the gun was in the trunk, and planned to use it, provide the necessary connection between them and the weapon sufficient to sustain the indictment for its criminal possession.

The three defendants and several others were indicted for a conspiracy to commit an armed robbery at an oriental rug store, for an attempted robbery at the store, and for criminal possession of a weapon recovered from the locked trunk of a car in which all three were, or had recently been, occupants. At the time of the arrest, the car was parked one block from the targeted premises.

An informant testified to the Grand Jury that the three defendants and others planned to commit an armed robbery at the store on an unspecified date and had "cased" it on several occasions. On the date of the arrest, the police were tipped off that the planned robbery was about to occur. Driving to the vicinity of the rug store, the police observed two of the defendants walking back and forth near the store and arrested them. The third defendant was arrested as he sat with another in the backseat of the car in question, which was parked about a block from the store. When the car was impounded at the precinct, the police broke open the trunk and recovered the gun. ¹

There was no evidence as to who the lessee of the car was, who the driver had been, that either the trunk or ignition key was recovered, or that any of the occupants had access to the trunk. The Grand Jury was not instructed with regard to Penal Law § 265.15(3), which provides that a gun recovered from an automobile is presumptive evidence of its possession by all persons occupying the vehicle at the time the weapon is found. ²

In reviewing the sufficiency of an indictment, a motion to dismiss it must be denied as long as the Grand Jury heard evidence which, if unexplained and uncontradicted, would warrant conviction by a trial jury. People v. Pelchet, 62 N.Y.2d 97, 105, 476 N.Y.S.2d 79, 464 N.E.2d 447. To satisfy this evidentiary standard in relation to the weapon possession count, the People do not rely upon the statutory presumption, which, as noted, was not charged to the Grand Jury. They do, however, rely upon the following: the presence of one of the defendants in the car, the locked trunk of which yielded the gun; circumstantial evidence that the other two defendants had recently emerged from the car; and evidence that all three had planned to commit an armed robbery at the nearby store.

The People reason that the defendants' presence in the car constitutes dominion and control over, and hence possession of, the vehicle and its contents (PL § 10.00[8] ); further, that the car's proximity to the place where they all planned to commit an armed robbery evinces that all three knew the gun was in the trunk; that they all thus knowingly possessed the gun both constructively and as accomplices to one another. In other words, the People argue, evidence of the defendants' intention to use the gun near the car combined with their presence in the car constitutes knowing possession of the gun in the trunk of the car.

While the argument is appealing it must fail because it rests upon an impermissible elision between two separate and distinct elements necessary to sustain a charge of criminal possession. In order to prove the charge there must first be evidence of possession, whether actual or constructive, personal or accessorial. Second, there must be evidence of scienter, that is, actual knowledge by each of the defendants that the gun indeed was in their possession. People v. Reisman, 29 N.Y.2d 278, 327 N.Y.S.2d 342, 277 N.E.2d 396; see, People v. Tirado, 47 A.D.2d 193, 366 N.Y.S.2d 140, affd. 38 N.Y.2d 955, 384 N.Y.S.2d 151, 348 N.E.2d 608. While the evidence before the Grand Jury may have been sufficient to establish the latter, that is, scienter or knowledge that the gun was in the trunk, there is neither direct nor circumstantial evidence that any of the defendants personally or accessorially possessed it, either actually or constructively.

Preliminarily, the law is clear that one's status as a conspirator is not, standing alone, sufficient to support a conviction for the crime which is the object of the conspiracy, or for any other crime committed in furtherance of the conspiracy. People v. McGee, 49 N.Y.2d 48, 424 N.Y.S.2d 157, 399 N.E.2d 1177, cert. denied 446 U.S. 942, 100 S.Ct. 2166, 64 L.Ed.2d 797. While the overt act necessary to support a conspiracy conviction may indeed also constitute evidence of some other crime, or an element of another crime, that overt act on the one hand, and the object crime or some other crime in furtherance of the conspiracy on the other hand, are not necessarily one and the same.

Here there is evidence that the defendants conspired to commit an armed robbery. Further, there is evidence that they engaged in an overt act in furtherance of that conspiracy by driving to the location with a gun in the trunk of the car. Evidence of the overt act, which thereby satisfies the conspiracy charge, is also, concomitantly, evidence of one element of the weapons possession charge. And that is the element of scienter or knowledge. That is to say, evidence that the defendants intended and planned to commit an armed robbery at the store is certainly circumstantial evidence that they knew the gun was in the trunk when they drove to the store.

But what of the second, independent element of the weapons charge, i.e., possession? Possession, as noted, may be personal or accessorial, actual or constructive. Possessory crimes are occasionally analyzed in terms of accomplice liability described in Article 20 of the Penal Law. That is, whether the defendant has, with the requisite intent, solicited, requested, commanded, importuned or intentionally aided or assisted another person to possess contraband. (People v. Pettus, 53 A.D.2d 597, 385 N.Y.S.2d 82; People v. Vasquez, 104 A.D.2d 429, 478 N.Y.S.2d 947.)

For example, a person who gives a gun to a friend knowing the latter is unlicensed to carry it, may thus be liable accessorially for his friend's unlawful possession. Cf., People v. Howard, 75 A.D.2d 1007, 429 N.Y.S.2d 131; People v. Pettus, 53 A.D.2d 597, 385 N.Y.S.2d 82; see, People v. Feliciano, 32 N.Y.2d 140, 344 N.Y.S.2d 329, 297 N.E.2d 76; People v. Brown, 112 Misc.2d 471, 447 N.Y.S.2d 129. Likewise if only the first of two accomplices in an assault actually uses a weapon on the victim, the second assailant may be held accessorially responsible for possession of the weapon if there is sufficient evidence to demonstrate that he somehow assisted the first assailant to possess it. People v. Bosque, 78 A.D.2d 986, 433 N.Y.S.2d 658, cert. den. 451 U.S. 992, 101 S.Ct. 2333, 68 L.Ed.2d 852. The second assailant's mere knowledge that his cohort had the weapon is not necessarily sufficient to establish that he aided or assisted the other in its possession.

With respect to possessory crimes, however, where the defendant is not discovered in actual personal possession, but rather is held accountable because of his involvement with others, his liability is not typically analyzed in terms of accessorial responsibility. Rather, it is evaluated in terms of constructive possession. That is, whether, in the language of Article 10 of the Penal Law, he exercised dominion or control over the contraband. ³ People v. Rivera, 77 A.D.2d 538, 430 N.Y.S.2d 88 (Defendant, who never touched the gun, yelled to his brother to "get the gun" and shoot the victim, held to have exercised dominion and control over the weapon); People v. Hadley, 67 A.D.2d 259, 415 N.Y.S.2d 719 (Defendant, as foreman of a truck cleaning crew had dominion and control over trucks in which stolen property was found, although he never drove the trucks); People v. Howard, 37 A.D.2d 178, 323 N.Y.S.2d 119; People v. Elfe, 37 A.D.2d 208, 323 N.Y.S.2d 114.

A common context for analyzing constructive possession through dominion and control are cases in which contraband is found inside premises in which the defendant was not present but with which he or she has some other connection. In evaluating whether the defendant had constructive possession of, or exercised dominion and control over the contraband within the premises some of the relevant factors are: whether the defendant's name is on the lease, his or her possession of keys to the premises, the absence or...