People v. Cicero

• Decision Date: 14 December 1984
• Citation: 106 A.D.2d 901,483 N.Y.S.2d 545
• Parties: PEOPLE of the State of New York, Respondent, v. Frank CICERO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 545

483 N.Y.S.2d 545

106 A.D.2d 901

PEOPLE of the State of New York, Respondent, v. Frank CICERO, Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 14, 1984.

Longeretta, Giruzzi & Zamorski by John Longeretta, Utica, for appellant.

Barry M. Donalty by Raymond Tarkowski, Utica, for respondent.

Before DILLON, P.J., and CALLAHAN, DOERR, DENMAN and MOULE, JJ.

MEMORANDUM:

On December 9, 1980, officers of the City of Utica Police Department, acting pursuant to a warrant, entered and searched an apartment at 2 West Adrean Terrace. Plastic bags containing marijuana were found in a downstairs closet, in a gym bag which was located on the floor of the living room, and in an upstairs closet.

The jury found the defendant guilty of criminal possession of marijuana in the second degree (Penal Law, § 221.25) and resisting arrest (Penal Law, § 205.30). He was sentenced respectively to five years' probation and three years' probation, to be served concurrently.

The apartment was occupied by defendant's mother, sister and brother. While the evidence did not clearly establish that defendant also resided in the apartment, he had been seen entering and leaving the apartment at least a dozen times between December 1 and December 9, 1980. He was present when the search of the apartment was conducted and he had remained in the apartment through the night preceding the search.

The evidence also established that only the defendant made use of the downstairs closet and only he kept his belongings in that closet. It was also established that the gym bag was the property of defendant and that in addition to a quantity of marijuana, it also contained defendant's karate uniform. The evidence was thus sufficient for the jury to have found that defendant exercised dominion or control over the marijuana seized from the downstairs closet and from the gym bag (Penal Law, § 10.00, subd. 8; People v. Watson, 56 N.Y.2d 632, 450 N.Y.S.2d 784, 436 N.E.2d 190; People v. Robertson, 48 N.Y.2d 993, 425 N.Y.S.2d 545, 401 N.E.2d 903; People v. Phiefer, 43 N.Y.2d 719, 401 N.Y.S.2d 483, 372 N.E.2d 323).

There was no basis in the evidence, however, from which the jury could have concluded that defendant exercised dominion or control over the upstairs closet or its contents.

Since the aggregate of marijuana found in the apartment, less the amount found in the upstairs closet, was more than eight ounces but less than 16 ounces, the evidence only supports a...