People v. Davis

• Decision Date: 08 October 2020
• Docket Number: 110006
• Citation: 187 A.D.3d 1291,131 N.Y.S.3d 447
• Parties: The PEOPLE of the State of New York, Respondent, v. Rodney R. DAVIS, Appellant.
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 1291

131 N.Y.S.3d 447

The PEOPLE of the State of New York, Respondent,

v.Rodney R. DAVIS, Appellant.

110006

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 16, 2020

Decided and Entered: October 8, 2020

Michael T. Baker, Public Defender, Binghamton (Alison C. Gachter of counsel), for appellant.

Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from a judgment of the County Court of Broome County (Dooley, J.), rendered May 19, 2017, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the fourth degree.

After a vehicle driven by defendant was stopped by a state trooper for speeding, the odor of marihuana was detected and a search of the vehicle disclosed a plastic bag of drugs, which field-tested positive for heroin, and a bag of marihuana. Defendant was charged by indictment with criminal possession of a controlled substance in the third degree (two counts) for possession of heroin and criminal possession of marihuana in the fifth degree. On the day scheduled for pretrial hearings, a discussion was held on the record regarding the state forensic laboratory report that established, after the indictment had been handed up, that the bag found in the vehicle contained cocaine, not heroin. The People indicated their intent to re-present the matter to a grand jury. Following further discussion, defendant accepted the People's plea offer and entered a guilty plea to the reduced charge of attempted criminal possession of a controlled substance in the fourth degree in satisfaction of all charges. At sentencing, County Court denied defendant's pro se oral motion to withdraw his guilty plea. Consistent with the terms of the agreement, County Court sentenced defendant, as an admitted second felony offender, to a prison term of 2½ years to be followed by one year of postrelease supervision. Defendant appeals.

On appeal, defendant argues that County Court erred in summarily denying his motion to withdraw his guilty plea without conducting an evidentiary hearing. In support of the motion, defendant argued that he had obtained sworn statements from his girlfriend and another unidentified person to the effect that the girlfriend was the owner of the cocaine found in the vehicle.¹ However, during the plea allocution, defendant had unequivocally admitted that he had possessed more than an eighth of an ounce of cocaine and entered a guilty plea to the reduced possessory charge. Even if, as defendant claimed, his girlfriend was the owner of the cocaine, there is no indication that she was even in the vehicle when it was stopped. More to the point, defendant's conviction for possession can rest upon his constructive possession of the cocaine in the vehicle, which only requires that he had dominion and control over the drugs, not that he was the owner (see Penal Law § 10.00[8] ; People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ; People v. Kalabakas, 183 A.D.3d 1133, 1139–1140, 124 N.Y.S.3d 448 [2020], lv denied 35 N.Y.3d 1067, 152 N.E.3d 1209 [2020] ). Moreover, under the automobile presumption, aside from circumstances not present here, "[t]he presence of a controlled substance in an automobile ... is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found" ( Penal Law § 220.25[1] ; see People v. Kalabakas, 183 A.D.3d at 1140, 124 N.Y.S.3d 448 ).

Accordingly, under either principle, defendant's admission during the plea allocution to knowingly possessing the cocaine was not undermined by the claim of another person to actual ownership of the drugs. Indeed, defendant did not submit an affidavit in connection with his motion asserting – or even argue to County Court – that he had been unaware that the cocaine was in the vehicle, or allege any facts undermining his dominion and control over them or rebutting the presumption that he knowingly possessed them. To the extent that defendant made a conclusory statement denying possessing drugs in moving to withdraw his guilty plea, the statement did not cast doubt on his guilt or the voluntariness of his plea as he did not negate his constructive possession of the cocaine or rebut the automobile presumption, and we find that the court's inquiry was sufficient (see People v. Lopez, 71 N.Y.2d 662, 666–667, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; compare People v. Beasley, 25 N.Y.2d 483, 488, 307 N.Y.S.2d 39, 255 N.E.2d 239 [1969] ; People v. Gresham, 151 A.D.3d 1175, 1177–1178, 57 N.Y.S.3d 532 [2017] ). Thus, in the absence of "evidence of innocence, fraud or mistake in the inducement," we find no abuse of the court's discretion in summarily denying defendant's motion to withdraw his plea ( People v. Diggs, 178 A.D.3d 1203, 1205, 116 N.Y.S.3d 707 [2019] [internal quotation marks and citation omitted], lv denied 34 N.Y.3d 1158, 120 N.Y.S.3d 234, 142 N.E.3d 1136 [2020] ; see CPL 220.60[3] ; People v. Seeber, 4 N.Y.3d 780, 781–782, 793 N.Y.S.2d 826, 826 N.E.2d 797 [2005] ; People v. Ozuna, 177 A.D.3d 1040, 1041, 112 N.Y.S.3d 826 [2019], lv denied 35 N.Y.3d 972, 125 N.Y.S.3d 10, 148 N.E.3d 474 [2020] ; People v. Harrison, 176 A.D.3d 1262, 1263–1264, 109 N.Y.S.3d 770 [2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 760, 138 N.E.3d 489 [2019] ).

Contrary to defendant's related claim, the record supports County Court's conclusion that his plea of guilty was knowing, voluntary and intelligent (see People v. Sougou, 26 N.Y.3d 1052, 1054–1055, 44 N.E.3d 196 [2015] ; People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 [2010] ; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ). To that end, during the plea...