People v. Glenn

• Decision Date: 30 December 1992
• Citation: 185 A.D.2d 84,592 N.Y.S.2d 175
• Parties: PEOPLE of the State of New York, Respondent, v. Otis GLENN, a/k/a Sammy McBride, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 175

592 N.Y.S.2d 175

185 A.D.2d 84

PEOPLE of the State of New York, Respondent, v. Otis GLENN, a/k/a Sammy McBride, Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 30, 1992.

Howard Broder, Rochester, for appellant.

James B. Vargason, Dist. Atty., by Karl Sleight, Auburn, for respondent.

Before GREEN, J.P., and PINE, BOEHM, FALLON and DOERR, JJ.

DOERR, Justice:

In the early morning hours of June 8, 1989, State Trooper Jerome Crawford stopped a 1989 Thunderbird, which was traveling west on the New York State Thruway, because the Thunderbird did not have a rear license plate. Defendant, who was driving the vehicle, indicated that a temporary registration was affixed to the window. Trooper Crawford observed that the temporary registration incorrectly described the vehicle as a 1986 Thunderbird. The passenger, later identified as Valfonso DeWitt, exited the vehicle and showed the trooper documentation that proved that the vehicle had been purchased for cash. DeWitt indicated that the vehicle belonged to his employer and that he was transporting the vehicle to Ohio for the employer. DeWitt also informed Trooper Crawford that they had begun their journey in Boston, Massachusetts, but Trooper Crawford had noticed that their Thruway ticket indicated that they had entered the Thruway in Woodbury, New York. Trooper Crawford returned to his vehicle to run checks and realized that defendant, in response to Crawford's request for his license, had given him a license bearing the photograph of the passenger and the name "Valfonso DeWitt". The trooper called over his loudspeaker and asked for Valfonso DeWitt to respond. Defendant responded and Trooper Crawford told him that he was under arrest for criminal impersonation. His suspicions now aroused, Trooper Crawford asked DeWitt if the vehicle contained any contraband. DeWitt responded in the negative and gave Trooper Crawford permission to search the interior of the vehicle. Trooper Crawford searched and found no contraband. DeWitt then consented to allow the trooper to search the trunk. According to Crawford, DeWitt punched a combination into a mechanism located on the driver's door and the trunk popped open. While DeWitt observed Trooper Crawford's search of the trunk, defendant waited in the front passenger seat of the Thunderbird.

Trooper Crawford observed several smaller bags in the trunk of the vehicle, as well as a large, maroon-colored American Tourister suitcase. The suitcase was very heavy, so Trooper Crawford did not remove it from the trunk, but asked DeWitt to open it. DeWitt said that he had to get the key. He went into the car, came back with a key, and unlocked the two side locks. The suitcase also had a combination lock. Trooper Crawford testified over defense objection that DeWitt told him that he would have to talk to defendant "about getting the combination". DeWitt conversed with defendant, then reported to Trooper Crawford that he was unable to get the combination and would have to get a screwdriver to open the suitcase. DeWitt again returned to the driver's side of the vehicle. Because DeWitt appeared to be getting "very nervous and agitated", Trooper Crawford decided to call for back-up. He returned to his vehicle and observed defendant slam the trunk closed and return to the Thunderbird, which sped away. An extended high-speed chase ensued. At one point, the Thunderbird changed directions on the Thruway by making a U-turn in the median. Trooper Crawford observed the vehicle stop on a Thruway bridge which spans the Seneca River. He saw the car trunk fly open and observed the driver exit the vehicle, go to the rear of the vehicle, then return to the vehicle. Although Trooper Crawford did not see anything being tossed from the bridge, a truck driver on the Thruway also observed a car stop on the bridge. He observed a man he identified as the passenger exit the vehicle, remove something from the trunk, and throw it into the river. The vehicle sped off again, eluding the police. The vehicle was located later that day in the City of Auburn, and defendant and DeWitt were arrested soon after, walking in Auburn. The suitcase was not in the trunk of the Thunderbird. Two months later, however, a maroon American Tourister suitcase was discovered in the Seneca River, one half to three quarters of a mile downstream of the Thruway bridge. The suitcase, which was identified at trial by Trooper Crawford as the same one he observed in the trunk of the Thunderbird, contained over four ounces of cocaine and heroin.

Defendant testified on his own behalf that he had agreed to accompany DeWitt to Ohio to deliver the car to DeWitt's employer. He had no knowledge of any drugs in the trunk. He denied that he slammed the trunk before the high-speed chase and he denied throwing anything off the Thruway bridge, attributing both of those actions to DeWitt. Defendant was convicted.

On appeal, defendant argues that the trial court erred by admitting the statement of DeWitt to Trooper Crawford that he had to talk with defendant to get the combination to the suitcase. We agree. The trial court admitted the statement as one made by a coconspirator in furtherance of a conspiracy. Although the statements of each coconspirator made in furtherance of the conspiracy can be admissible against all other coconspirators, the court must determine whether the admission of the statements of a coconspirator would violate defendant's right to confrontation. For the statement to be admitted, the declarant must be unavailable and the statement must bear some indicia of reliability sufficient to justify its admission, even in the absence of cross-examination (People v. Comfort, 151 A.D.2d 1019, 1020, 542 N.Y.S.2d 84, lv. denied 74 N.Y.2d 807, 546 N.Y.S.2d 565, 545 N.E.2d 879; see also, People v. Sanders, 56 N.Y.2d 51, 64, 451 N.Y.S.2d 30, 436 N.E.2d 480, rearg. denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247). Assuming that DeWitt was unavailable to testify at defendant's trial, we conclude that the second prong of the test was not satisfied. This was not a case where the statement was made to someone with whom the declarant was engaged in a joint criminal enterprise (see, People v. Sanders, supra; People v. Warren, 156 A.D.2d 972, 549 N.Y.S.2d 263, lv. denied 75 N.Y.2d 925, 555 N.Y.S.2d 44, 554 N.E.2d 81; People v. Comfort, supra ). Here, DeWitt, having been stopped by Trooper Crawford and having acknowledged an ownership interest in the vehicle, had a very strong motive to lie, to convince the trooper that defendant had control over the suitcase which contained the drugs. The statement, therefore, does not bear sufficient indicia of reliability to justify its admission in the absence of cross-examination.

Because the admission of the statement violated defendant's right to confrontation, its admission was an error of constitutional dimension (see, People v. Ayala, 75 N.Y.2d 422, 431-432, 554 N.Y.S.2d 412, 553 N.E.2d 960, rearg. denied 76 N.Y.2d 773, 559 N.Y.S.2d 986, 559 N.E.2d 680; People v. Sanders, supra, 56 N.Y.2d at 65, 451 N.Y.S.2d 30, 436 N.E.2d 480). The test that must be applied, therefore, is whether "there is no reasonable possibility that the error might have contributed to the conviction. Even this highly exacting harmless-error standard, however, does not demand that guilt be proven 'indisputably' " (People v. Ayala, supra, 75 N.Y.2d at 431, 554 N.Y.S.2d 412, 553 N.E.2d 960, citations omitted). Here, excluding DeWitt's statement, the proof of guilt was overwhelming. Defendant was driving the vehicle when it was stopped by Trooper Crawford and he offered DeWitt's license when asked to produce his license. When Trooper Crawford returned to his vehicle to call for backup, defendant slammed the trunk shut so that he and DeWitt could flee the scene. Moreover, there was testimony which, if believed by the jury, demonstrated that defendant threw the suitcase off the Thruway bridge into the Seneca River. In light of the overwhelming proof of defendant's guilt, the admission of DeWitt's statement was harmless (see, People v. Perez, 175 A.D.2d 614, 572 N.Y.S.2d 550, lv. denied 78 N.Y.2d 1014, 575 N.Y.S.2d 822, 581 N.E.2d 1068).

Defendant's second contention is that the trial court erred by instructing the jury on the presumption of knowing possession in Penal Law § 220.25(1). Defendant argues that the presumption is unconstitutional as applied to him because the drugs were in a locked suitcase inside the locked trunk of DeWitt's automobile.

Penal Law § 220.25(1) provides, in relevant part, that "[t]he presence of a controlled substance in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found". The statute contains three exceptions, none of which applies in this case. The Supreme Court, upholding the constitutionality of the identical presumption for weapons found in Penal Law § 265.15(3), concluded that the presumption is not unconstitutional as applied if there is a rational connection between the known fact proven by the prosecution and the ultimate fact presumed (Ulster County Ct. v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777; see also, People v. Rivera, 135 Misc.2d 766, 768, 516 N.Y.S.2d 854). Here, there is such a rational connection. When the Thunderbird was stopped, defendant was behind the wheel and, according to the trooper's testimony, the lock mechanism to open the trunk was located on the driver's door. The key to the suitcase was also inside the vehicle. Under those circumstances, it was rational to presume that defendant had both the ability and the intent to exercise dominion and control over the drugs in the trunk (see, People v. Hicks, 138 A.D.2d 519, 522, 526 N.Y.S.2d 127, lv. denied 71 N.Y.2d 969, 529 N.Y.S.2d 80, 524 N.E.2d 434). Defendant further demonstrated dominion and...