People v. Crespo
| Decision Date | 16 November 1993 |
| Citation | 603 N.Y.S.2d 838,198 A.D.2d 85 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Herman CRESPO, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before MURPHY, P.J., and SULLIVAN, KUPFERMAN and NARDELLI, JJ.
Judgment of the Supreme Court, Bronx County (Joseph Fisch, J.), rendered May 1, 1991, convicting the defendant of two counts of criminal possession of a weapon in the third degree and one count of criminal possession of a hypodermic instrument, and sentencing him as a predicate felon to two terms of 3 1/2 to 7 years and a term of one year, all to run concurrently, unanimously reversed on the law, and the indictment dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30 day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.
Even when viewed as it must be on appeal, in the light most favorable to the prosecution (see, People v. Montanez, 41 N.Y.2d 53, 57, 390 N.Y.S.2d 861, 359 N.E.2d 371), the evidence was insufficient to prove the defendant's guilt beyond a reasonable doubt.
The defendant was apprehended by the police just moments after entering the apartment where the weapons and hypodermic instrument he was charged with possessing were found; the weapons were found secreted under a mattress and the hypodermic needle upon a dresser. As the defendant was not in actual possession of the contraband the prosecution proceeded on a constructive possession theory. However, the defendant's dominion and control over the premises and, accordingly, over the contraband found there, although essential to the People's proof (see, Penal Law § 10.00[8]; People v. Watson, 56 N.Y.2d 632, 634, 450 N.Y.S.2d 784, 436 N.E.2d 190), was never established. Although the defendant possessed the key to the apartment, he was not the tenant of record and, indeed, there was no proof that he had spent more than one night there. Moreover, at the time of the defendant's arrest he had only just returned to the apartment, having been absent from the premises for the preceding three hours. Plainly, the defendant's single, relatively brief and discontinuous use of the apartment was not a sufficient predicate for the inference that he possessed what was found there. The People's proof in no way excluded the possibility that the contraband had been placed in the apartment without the defendant's knowledge either before his overnight stay or during his undisputed three hour absence from the premises immediately prior to his arrest. The People's failure in this wholly...
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