People v. Banks
| Decision Date | 06 January 2005 |
| Docket Number | 12240. |
| Citation | 786 N.Y.S.2d 861,14 A.D.3d 726,2005 NY Slip Op 00027 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EDWIN BANKS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered September 20, 1999, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree.
After two police officers arranged and executed a controlled drug buy by a confidential informant at a certain address, the officers and informant submitted affidavits along with an application for a search warrant. A City Court judge issued a no-knock search warrant for the first floor apartment at that address. The police executed that warrant and discovered in the kitchen a scale and numerous plastic baggies with the corners removed. In the bathroom, they found a plastic bag containing six tied-off corners of baggies each containing a piece of crack cocaine. An officer peered through the window and saw defendant in the doorway to the bathroom before the other officers breached the door to the apartment; other officers then saw a black male exiting the apartment's front door and heading up the stairs and officers located defendant in the upstairs apartment. Defendant was arrested and tried for several drug crimes. The jury acquitted him of the most serious count, criminal possession of a controlled substance in the third degree, but convicted him of criminal possession of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree. Defendant appeals.
City Court had a sufficient basis to issue the search warrant. Contrary to defendant's argument that the court was required to establish the informant's reliability and basis of knowledge under the Aguilar-Spinelli test, that standard was inapplicable here because there was a named confidential informant as opposed to an undisclosed informant (compare People v David, 234 AD2d 787, 787-788 [1996], lv denied 89 NY2d 1034 [1997], and People v McCulloch, 226 AD2d 848, 849 [1996], lv denied 88 NY2d 1070 [1996], with People v Martinez, 80 NY2d 549 [1992]). The police submitted to the court a copy of the informant's affidavit that included the informant's name, so the informant's identity was disclosed before the court issued the warrant. The warrant application and accompanying affidavits contained sufficient information to support a reasonable belief that evidence of drug crimes may be found in the first floor apartment, based on the personal actions and observations of the confidential informant and police during the controlled drug buy (see People v Lee, 303 AD2d 839, 840 [2003], lv denied 100 NY2d 622 [2003]; People v McCulloch, supra at 849). Thus, the warrant was properly issued.
The evidence was legally sufficient to prove defendant's constructive possession of crack cocaine. The element of constructive possession requires proof that defendant "exercised `dominion or control' over the property by a sufficient level of control over the area in which contraband [was] found" (People v Manini, 79 NY2d 561, 573 [1992], quoting Penal Law § 10.00 [8]). While mere presence in an apartment where drugs are found is insufficient to constitute constructive possession (see People v Edwards, 206 AD2d 597, 597-598 [1994], lv denied 84 NY2d 907 [1994]), the evidence here created a stronger link between defendant, the apartment and the drugs. Defendant had keys to the apartment in his pocket, he acknowledged that he stayed overnight there at times, his friend testified that defendant was in the apartment most of the time in the two weeks preceding the raid and the upstairs neighbor testified that defendant was the only...
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