People v. Headley

• Decision Date: 24 October 1988
• Citation: 143 A.D.2d 937,533 N.Y.S.2d 562
• Parties: The PEOPLE, etc., Appellant, v. Grafton HEADLEY, Roxroy Haughton, William Green, and Anthony Morris, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 562

533 N.Y.S.2d 562

143 A.D.2d 937

The PEOPLE, etc., Appellant, v. Grafton HEADLEY, Roxroy Haughton, William Green, and Anthony Morris, Respondents.

Supreme Court, Appellate Division Second Department.

Oct. 24, 1988.

John J. Santucci, Dist. Atty., Kew Gardens (Emil Bricer, of counsel), for appellant.

Before LAWRENCE, J.P., and WEINSTEIN, SPATT and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Queens County (Chetta, J.), dated July 3, 1986, which granted the motions of the defendants Grafton Headley, Roxroy Haughton, William Green and Anthony Morris for a trial order of dismissal setting aside a verdict convicting them of criminal possession of a controlled substance in the first degree, criminal possession of a weapon in the third degree (seven counts), and criminal possession of marihuana in the third degree.

ORDERED that the appeal from so much of the order as is in favor of William Green is dismissed, as it appears that that defendant has died (see, People v. Feliciano, 68 N.Y.2d 790, 506 N.Y.S.2d 862, 498 N.E.2d 426); and it is further,

ORDERED that the order is otherwise affirmed.

The motions by the defendants Grafton Headley, Roxroy Haughton and Anthony Morris (hereinafter the respondents) for a trial order of dismissal setting aside the verdict as against them were properly granted for the reasons set forth in the memorandum decision of Justice Chetta.

Further, as noted by our dissenting colleague, we unanimously find that the statutory presumption set forth in Penal Law § 220.25(2) does not apply to the facts at bar since the seized drugs were not in open view (cf. People v. Hylton, 125 A.D.2d 409, 509 N.Y.S.2d 128, lv. denied, 69 N.Y.2d 881, 515 N.Y.S.2d 1029, 507 N.E.2d 1099), nor would the presumption apply to the weapons found on the premises (cf., People v. Chandler, 121 A.D.2d 644, 503 N.Y.S.2d 875, lv. denied 68 N.Y.2d 913, 508 N.Y.S.2d 1033, 501 N.E.2d 606).

However, unlike the situation in People v. Gina, 137 A.D.2d 555, 524 N.Y.S.2d 296, lv. denied 71 N.Y.2d 1027, 530 N.Y.S.2d 562, 526 N.E.2d 54, relied upon by our dissenting colleague, we find that this case is more analogous to the circumstances in People v. Dawkins, 136 A.D.2d 726, 524 N.Y.S.2d 64. In Dawkins, the record indicates that in executing a search warrant, the police claimed that they had to use a battering ram to enter the subject apartment. In the kitchen, the police found the defendant, with a bag containing 17 vials of cocaine under her feet. A search of the premises revealed, in pertinent part, 41 bags of marihuana in the living room. This court held that the defendant could be found to be in constructive possession of the cocaine. However, in light of the fact that the People offered no evidence that "the defendant resided in the apartment, frequented it on a regular basis or otherwise exercised dominion or control over the area where the marihuana was found", this court found that "the defendant's mere presence in the apartment where the marihuana was found was not sufficient, in and of itself, to establish that she exercised the necessary dominion or control to warrant a finding of constructive possession of the marihuana" (People v. Dawkins, supra, at 727, 524 N.Y.S.2d 64).

Similarly, in this case, the People offered no proof that the respondents had any connection with the apartment, except their presence in the living room on the day in question, or as to how long the respondents had been in the apartment before the arrival of the police. Neither the failure of the respondents to open the apartment door nor their failure to carry identification documents warrants an inference of criminal intent. With regard to the claim that the rightful owner of the premises would not be so careless as to leave the drugs, weapons and money in the hands of innocent bystanders, we note that the People did not present any evidence that only the respondents were in the apartment at the time the police arrived. Indeed, there was some indication that an individual had escaped out of one of the kitchen windows. Further, the weapons, drugs and money found in the living room were all totally concealed in a metal box on an end table.

Accordingly, since there was no evidence presented by the People establishing that the respondents had actual or constructive possession of the drugs and weapons, the trial court properly issued a trial order of dismissal in their favor.

LAWRENCE, J.P., and SPATT and BALLETTA, JJ., concur.

WEINSTEIN, J., concurs in the dismissal of the appeal from the portion of the order which is in favor of William Green, but otherwise dissents and votes to reverse the order insofar as appealed from by the defendants Headley, Haughton and Morris, to deny the motions of those defendants, and to reinstate the verdict as against them:

Criminal Term erred in overturning a jury verdict and granting the defendants' motion for a trial order of dismissal on the ground that the People, on their direct case, had failed to establish the defendants' constructive possession of drugs and weapons discovered by the police during their execution of a search warrant. Viewing the circumstantial evidence in the light most favorable to the People and affording the benefit of every reasonable inference to be drawn therefrom, I find that the evidence adduced was legally sufficient to establish the defendants' constructive possession of the drugs and weapons beyond a reasonable doubt (see, People v. Giuliano, 65 N.Y.2d 766, 768, 492 N.Y.S.2d 939, 482 N.E.2d 557; People v. Lewis, 64 N.Y.2d 1111, 1112, 490 N.Y.S.2d 166, 479 N.E.2d 802; People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932). The facts from which the inference of guilt is drawn, are, when perceived as a whole, inconsistent with innocence and exclude to a moral certainty every other reasonable hypothesis (People v. Lewis, supra; People v. Way, 59 N.Y.2d 361, 365, 465 N.Y.S.2d 853, 452 N.E.2d 1181).

At approximately 5:30 P.M. on February 5, 1985, a team of five police officers from the Queens Narcotics squad forcibly entered an apartment at 1256 Central Avenue in Far Rockaway to search for drugs pursuant to a duly executed warrant. The entry team first announced themselves as police officers and demanded that the occupants of the apartment open the door. Although they received no verbal response, the police distinctly heard several sets of footsteps scurrying about insi the apartment. The apartment was secured by a metal door which had normal locks in addition to timber reinforcements fastened between the door frame and the intersection of the floor and interior walls. The police ultimately gained entry by utilizing a piece of pipe filled with concrete as a battering ram. It took approximately 24 strikes over a period of at least a minute before the door could be knocked from its hinges.

Upon entering the apartment, the police observed five individuals positioned in the living room against the far wall which leads to the kitchen. A sixth individual, who was later identified as the defendant Headley, was found hanging from a bedroom window with his arm sticking back inside the apartment. The police hauled Headley back into the apartment and placed him in the living room with the others. None of the defendants was the tenant of record. A preliminary frisk for weapons was conducted of each prisoner. Each prisoner was then taken into the bedroom individually and searched thoroughly. None of the male prisoners had any weapons, contraband, money or even identification on his person. A search of the female prisoner, who is not a defendant herein, revealed a small glassine envelope containing a white powder believed to be cocaine. After checking closets and the fire escape to insure that no other individuals had secreted themselves there, the police conducted a systematic search of the apartment.

On the floor of the bedroom, in plain view, and in close proximity to the window from which the defendant...