People v. Floyd

• Decision Date: 12 November 1991
• Citation: 576 N.Y.S.2d 228,177 A.D.2d 310
• Parties: The PEOPLE of the State of New York, Plaintiff-Appellant, v. Wilbert FLOYD, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 228

576 N.Y.S.2d 228

177 A.D.2d 310

The PEOPLE of the State of New York, Plaintiff-Appellant, v. Wilbert FLOYD, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Nov. 12, 1991.

Before SULLIVAN, J.P., and ROSENBERGER, WALLACH, KUPFERMAN, and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (James Leff, J.), which convicted defendant of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1], criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] and criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1], and sentenced him to three concurrent indeterminate terms of imprisonment of 2 1/2 [177 A.D.2d 311] to 7 1/2 years, unanimously modified, on the law, to vacate the sentence and remand the matter for resentencing as a second felony offender, and otherwise affirmed.

On October 7, 1988, near the corner of Bowery and East 1st Street in Manhattan, defendant was observed by undercover detective Grace Prince handing a brown paper bag to one of his companions, McAllen Mathurin, who then sold crack under defendant's instructions to unapprehended passersby. Detective Prince heard defendant yell "blue tops" and shout "do them" to Mathurin, as defendant, Mathurin and a third companion, Anthony Frazier, walked down East 1st Street. When defendant and his companions approached Prince, she asked for "two", and Mathurin promptly gave her two blue-topped vials of crack from a brown paper bag in exchange for $10 in prerecorded buy money. Prince remained in the area and observed defendant and his companions continue to sell additional vials of crack until defendant told them that that was "enough". Moments later, after being radioed by Prince, a backup team of officers arrested defendant and his companions. The arresting officers recovered eight blue-capped vials of crack, the prerecorded buy money and additional cash from Mathurin. 58 blue-topped vials of crack were found in Frazier's sneakers.

On this appeal, defendant contends that he had no actual or constructive possession of the 58 vials found in Frazier's shoes, asserting his lack of dominion or control over them. Defendant cites cases which stand for the proposition that a defendant's "mere presence" in the company of one upon whose person narcotics are found does not establish dominion and control (People v. Headley, 74 N.Y.2d 858, 547 N.Y.S.2d 827, 547 N.E.2d 82; People v. Royster, 156 A.D.2d 735, 549 N.Y.S.2d 488). The rule, however, is not applicable to the facts at bar which establish considerably more than the "mere presence" of defendant in the vicinity of the contraband.

Defendant was clearly in charge of the drug-selling operation. Defendant told Mathurin and Frazier what merchandise to sell, when to start selling it and when to stop. It was defendant who handed a brown paper bag to Mathurin before he instructed him to begin selling, and the vials of crack that Detective Prince purchased came from a brown paper bag. As supervisor of the drug selling operation, defendant clearly had an interest in the drugs in Frazier's sneakers. The vials were within defendant's immediate reach and control and available for his unlawful use (People v. Lynch, 116 A.D.2d 56, 61, 500 N.Y.S.2d 236; People v. Lemmons, 40 N.Y.2d 505, 387 N.Y.S.2d 97, 354 N.E.2d 836). That the vials were found in Frazier's shoes does not prevent defendant or Mathurin from possessing them because it is well established that possession of contraband can be joint (People v. Tirado, 38 N.Y.2d 955, 384 N.Y.S.2d 151, 348 N.E.2d 608). Furthermore, all of the vials--including the two sold to Detective Prince, the 8 recovered from Mathurin and the 58 recovered from Frazier--were all packaged in the same manner and all had blue caps. It is a reasonable inference that all of the vials came from the same batch and that the 58 vials were the balance of the vials remaining to be sold under defendant's direction.

The People appeal the Trial Justice's ruling that defendant was not a second felony offender. Defendant maintained, and the trial court agreed, that defendant's first felony conviction in June of 1988 was invalid...