People v. Barnes

• Citation: 618 N.Y.S.2d 263,204 A.D.2d 33
• Parties: THE JUSTICES RECOGNIZING THEIR INABILITY TO RECONCILE THEIR VIEWS WITH RESPECT TO THE APPLICABILITY OF PEOPLE v. RYAN 82 N.Y.2d 235 , 605 N.Y.S.2d 235, 626 N.E.2d 51 , TO THE FACTS PRESENTED IN THE CASE, HEREBY RELEASE THEIR DECISION IN The PEOPLE of the State of New York, Respondent, v. Michael BARNES, Defendant-Appellant.
• Decision Date: 27 September 1994
• Court: New York Supreme Court — Appellate Division

Page 263

618 N.Y.S.2d 263

204 A.D.2d 33

THE JUSTICES RECOGNIZING THEIR INABILITY TO RECONCILE THEIR

VIEWS WITH RESPECT TO THE APPLICABILITY OF PEOPLE v. RYAN

82 N.Y.2d 235

, 605 N.Y.S.2d 235, 626 N.E.2d 51

, TO THE FACTS PRESENTED IN THE CASE, HEREBY RELEASE THEIR DECISION IN

The PEOPLE of the State of New York, Respondent, v. Michael BARNES, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Sept. 27, 1994.

Before ROSENBERGER, J.P., and KUPFERMAN, ROSS, NARDELLI and TOM, JJ.

MEMORANDUM BY THE COURT.

Judgment, Supreme Court, New York County (Harold J. Rothwax, J.), rendered May 27, 1992, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fifth degree, for which he was sentenced, as a second felony offender, to a term of three and one-half to seven years, affirmed. Sua sponte leave to appeal to the Court of Appeals is hereby granted by Justice Rosenberger.

Acting upon a tip from a passerby who motioned in defendant's direction and told them that "a young black kid" was across the street selling drugs, two uniformed police officers who were on foot patrol at Eighth Avenue and 41st Street immediately approached defendant. As they got to within ten feet of defendant, he threw a bag to the ground. While one officer attempted to question defendant, the other officer retrieved the bag, which contained 22 vials of crack. Defendant then struck the officer questioning him in the head with his elbow and tried to run away and, after a scuffle, he was seized and placed under arrest. At trial, the police chemists testified that the vials of crack contained 887 milligrams of pure cocaine.

Among other issues, defendant argues in his supplemental brief that his conviction should be reduced from the class D felony of criminal possession of a controlled substance in the fifth degree to the class A misdemeanor of criminal possession of a controlled substance in the seventh degree in light of the recent decision in People v. Ryan, 82 N.Y.2d 497, 605 N.Y.S.2d 235, 626 N.E.2d 51 inasmuch as the People's trial evidence was insufficient to prove that the vials of crack contained at least 500 milligrams of pure cocaine.

As was usual in these pre-Ryan cases, everyone proceeded at trial on the premise that there was no mens rea requirement with regard to the weight element of a drug possession charge. Although the defense made a non-specific motion to dismiss for legal insufficiency at the close of the People's case, there was no suggestion at that point that the mens rea requirement of knowledge applied to the weight of the drugs. The defense's subsequent request that the court charge the lesser count of criminal possession of a controlled substance in the seventh degree was made not on the ground that the evidence was insufficient to prove that he knew that the weight of the cocaine he possessed equalled or exceeded 500 milligrams, but rather that "based on the testimony of the chemist the jury could draw a reasonable inference that the weight was somehow less than five hundred milligrams" because "we are not dealing with a substantial amount over that." The court declined to submit the lesser included offense to the jury inasmuch as "3 hundred 87 [sic] more than five hundred. That is a lot" and it was satisfied that there was no reasonable view of the evidence under which the jury could find defendant not guilty of the felony but find him guilty of the misdemeanor.

We agree and for the reasons set forth by Justice Sullivan in his opinion in People v. Ivey, 204 A.D.2d 16, 618 N.Y.S.2d 254, decided herewith, we find that defendant has failed to preserve the present issue for review, nor do we reach such issue in the interest of justice.

We have considered defendant's other points and find them to be without merit.

All concur except ROSENBERGER, J.P., and TOM, J., who dissent in part, each in a separate memorandum as follows:

ROSENBERGER, Justice (dissenting in part).

The evidence was insufficient as a matter of law to support the finding that the defendant knew that he possessed 500 milligrams or more of cocaine (Penal Law § 220.06[5]. I would therefore modify the judgment to the extent of reducing the conviction of criminal possession of a controlled substance in the fifth degree to criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), vacate the sentence imposed, remit the matter for resentencing and otherwise affirm.

Although evidence that a defendant handled a controlled substance, together with other circumstantial evidence, may create an inference that the possessor knew the weight of the controlled substance which he possessed (see, People v. Ryan, 82 N.Y.2d 497, 605 N.Y.S.2d 235, 626 N.E.2d 51), here, the People failed to prove that the defendant knew that he possessed 500 milligrams or more of cocaine (see, People v. Cooper, 204 A.D.2d 24, 618 N.Y.S.2d 257, Appeal No. 51997 [1st Dept, decided herewith]; People v. Gray, 205 A.D.2d 353, 613 N.Y.S.2d 170; People v. Gregg, 203 A.D.2d 188, 611 N.Y.S.2d 151). Contrary to the majority's conclusion, the issue has been preserved for our review (see, People v. Cooper, supra; People v. Gray, supra; People v. Kilpatrick, 143 A.D.2d 1, 531 N.Y.S.2d 262).

The difference between misdemeanor weight and the amount of cocaine possessed by the defendant was .01365 of an ounce, an amount so small that it would be virtually impossible for a human to determine merely by its handling. Moreover, there is nothing in the record to suggest that the defendant knew the weight of the substance as distinct from the weight of the glass vials which contained it.

Accordingly, there was insufficient evidence to satisfy the knowledge requirement within the meaning of Penal Law § 220.06(5).

TOM, Justice (dissenting in part).

I disagree with the majority and would modify the judgment of the trial court.

In People v. Ryan, 82 N.Y.2d 497, 605 N.Y.S.2d 235, 626 N.E.2d 51, the Court of Appeals held that if a single mens rea is set forth in a criminal statute, it applies to all elements of the offense contained therein. Applying the foregoing to Penal Law § 220.18(5) (criminal possession of a controlled substance in the second degree), the court concluded that the weight of the controlled substance is not a strict liability element and, therefore, it is incumbent upon the People to prove that the defendant knowingly possessed the weight of the controlled substance set forth in the statute.

While Ryan was decided subsequent to the instant case, defendant's conviction must be modified based on the fundamental principle that the People have the burden of proving in the first instance each element of the crime charged beyond a reasonable doubt (see, People v. Contes, 60 N.Y.2d 620, 495 N.Y.S.2d 32, 485 N.E.2d 239). If the burden of proof is not met, the People's case is legally insufficient and cannot support a conviction. Simply, the People in this case have failed to prove the element of mens rea as to the weight of the controlled substance, as expounded in Ryan, to support a conviction of criminal possession of a controlled substance in the fifth degree. It would, therefore, be manifestly unfair and a denial of due process to uphold defendant's conviction, pursuant to Ryan, as the People have failed to prove the requisite elements of the crime charged.

The People argue that Ryan should be applied prospectively only; that the issue was not preserved and should not be reached in the interest of justice; and that defendant's knowledge of the weight was proven circumstantially.

I find that the issue has been preserved for our review. The record reflects that defendant, at the close of the People's case, moved for a trial order of dismissal pursuant to CPL 290.10(1) on the ground that the People failed to offer proof legally sufficient to establish the offense charged, thus preserving the issue for review.

Although defendant, in this pre-Ryan case, did not specifically request a charge on the requirement of the knowledge of weight of the cocaine, in People v. Kilpatrick, 143 A.D.2d 1, 3, 531 N.Y.S.2d 262, we held that:

Where, as here, the evidence adduced at trial is legally insufficient to...