People v. Edwards

• Decision Date: 14 July 1994
• Citation: 206 A.D.2d 597,614 N.Y.S.2d 469
• Parties: The PEOPLE of the State of New York, Respondent, v. Gavin EDWARDS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 469

614 N.Y.S.2d 469

206 A.D.2d 597

The PEOPLE of the State of New York, Respondent, v. Gavin EDWARDS, Appellant.

Supreme Court, Appellate Division Third Department.

July 14, 1994.

Gary P. Delisle, Schenectady, for appellant.

Sol Greenberg, Dist. Atty. (Christopher D. Horn, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, WEISS and YESAWICH, JJ.

YESAWICH, Justice.

Appeal from a judgment of the Supreme Court (Canfield, J.), rendered November 6, 1992 in Albany County, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the third degree.

On the basis of information provided by a confidential informant, as well as that gleaned from their own surveillance, City of Albany Police obtained a search warrant for an apartment on Clinton Avenue in the City of Albany. Upon execution of the warrant, police officers found a significant quantity of crack cocaine in one bedroom, more cocaine in small packages in the kitchen, and various weapons and drug paraphernalia throughout the apartment. All of the occupants were arrested, including defendant, who was asleep on a couch in the living room at the time of the search. Convicted after a jury trial of possession of a controlled substance in the first degree and of possessing one of the three guns found in the apartment, defendant appeals.

Defendant urges, and we agree, that the proof presented at trial was insufficient to support his conviction. While reference is made in the People's brief to a "narcotics factory * * * being run out of [the] premises" (see, Penal Law § 220.25[2], the case was prosecuted, and the jury was instructed, only with reference to a theory of constructive possession. As to that, it is settled that one's mere presence in an apartment or house where contraband is found does not constitute sufficient basis for a finding of constructive possession (see, People v. Headley, 74 N.Y.2d 858, 859, 547 N.Y.S.2d 827, 547 N.E.2d 82; People v. Butts, 177 A.D.2d 782, 784, 576 N.Y.S.2d 393). Here, there is no evidence that defendant exercised dominion or control over the premises--he neither owned, leased, resided at or was a frequent visitor to the apartment (see, People v. Rivera, 176 A.D.2d 498, 500, 574 N.Y.S.2d 566, lv. denied 79 N.Y.2d 831, 580 N.Y.S.2d 211, 588 N.E.2d 109; People v. Dawkins, 136 A.D.2d 726, 727, 524 N.Y.S.2d 64)--or was involved in any drug-selling activity taking place there (see, People v. Pearson, 75 N.Y.2d 1001, 1002, 557 N.Y.S.2d 269, 556 N.E.2d 1076). The fact that he was observed riding in a vehicle owned by codefendant Derrick Greene on the previous day, when Greene was allegedly delivering some of the cocaine to another person who subsequently brought it to the apartment, is insufficient to establish that he had knowledge of, let alone control over, the drugs, Greene or the apartment (see, People v....