People v. Leyva

• Decision Date: 04 December 1975
• Citation: 379 N.Y.S.2d 30,341 N.E.2d 546,38 N.Y.2d 160
• Parties: , 341 N.E.2d 546 The PEOPLE of the State of New York, Respondent, v. Widelto LEYVA et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 30

379 N.Y.S.2d 30

38 N.Y.2d 160, 341 N.E.2d 546

The PEOPLE of the State of New York, Respondent, v. Widelto LEYVA et al., Appellants.

Court of Appeals of New York.

Dec. 4, 1975.

Louis R. Rosenthal, Brooklyn, for Widelto Leyva, appellant.

Michael Jaffe, New York City, for Jose Low, appellant.

Frank A. Lopez, Brooklyn, for Carmen Garcia, appellant.

Eugene Gold, Dist. Atty. (Richard D. Carruthers, Brooklyn, of counsel), for respondent.

FUCHSBERG, Judge.

All three defendants appeal from separate orders affirming their convictions for criminal possession of dangerous drugs rendered after a joint jury trial. All three were apprehended while they were together inside an automobile which also contained a large quantity of cocaine, stored in a manila envelope underneath the front seat. Their arrest stemmed from information received by police from an informer.

At trial, after the arresting officers testified to finding both the defendants and the drugs in the same car, the prosecution utilized the statutory presumption of possession authorized by section 220.25 of the Penal Law ¹ to complete its prima facie case against defendants. That statute reads: 'The presence of a dangerous drug 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 drug was found'.

Defendant Low testified in his own behalf. He attempted to explain that he was in the car by accident and did not know the drugs were there. Defendants Leyva and Garcia put in no evidence and did not take the stand.

Each defendant now challenges the use of the presumption of possession. Low contends that his testimony, directed toward rebutting any knowing possession of the drugs, should have been sufficient to remove the presumption from the jury's consideration. Defendants Garcia and Leyva contend that alleged inconsistencies in the police officer's testimony for the prosecution should have the same rebuttal effect with respect to them; if their assertion is correct, the point would benefit Low as well. All three argue that the Judge's handling of the presumption in his charge to the jury contained error. Finally, all three argue that the identity of the police informer should have been revealed to them.

We find no error and, accordingly, we affirm the convictions.

The thrust of defendants' objections is clearly directed toward what they consider the inherent unfairness of the statutory presumption. Some comment on the presumption itself is, therefore, a necessary preliminary to our discussion.

Statutory presumptions, particularly when used in criminal cases, have occasioned much comment among Judges and scholars. The debate centers on the tensions produced by attempts to balance prosecutorial necessity against the basic jurisprudential requirement that no liability be imposed upon a defendant until every element of the case against him has been proved beyond a reasonable doubt. (See Note, Constitutionality of Rebuttable Statutory Presumptions, 55 Col.L.Rev. 527, 531; cf. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508.)

On the one hand, a statutory presumption of possession which operated to shift the burden of proof to a defendant unless he produced rebuttal evidence might well be unconstitutional (Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658; People v. Terra, 303 N.Y. 332, 334, 102 N.E.2d 576, 577, app. dsmd., 342 U.S. 938, 72 S.Ct. 561, 96 L.Ed. 698; cf. Mullaney v. Wilbur, supra; Note, 2 St. Mary's L.J. 115, 118 (collecting cases); see, generally, Christie and Pye, Presumptions and Assumptions in the Criminal Law: Another View, 1970 Duke L.J. 919). On the other hand, denying the prosecution the use of any inferential tool in cases like the present one would lead to the 'practical impossibility of proving * * * actual participation in the illegal activities.' (United States v. Gainey, 380 U.S., at p. 65, 85 S.Ct., at p. 757.) In the absence of a legislative presumption in drug cases, for example, many drug traffickers could operate with impunity simply by ensuring that the contraband was in some part of the transporting vehicle and not on their persons. (See Comment, Possession of Dangerous Drugs in a Car--New York's Criminal Presumption Statute, 21 Buffalo L.Rev. 188, 189--192.)

In a series of cases, the United States Supreme Court has provided some guidelines for use in effecting a proper balance. The guidelines begin with the requirement that there be a rational connection between the facts which are proved and the one which is to be inferred with the aid of the presumption. Thus, in Tot v. United States, 319 U.S., at p. 469, 63 S.Ct. 1241, the court explained that it is the presence of a rational connection which prevents the burden of proof from shifting impermissibly to the defendant. And the court there also made clear that, absent a rational connection, no amount of prosecutorial necessity would serve to validate a presumption. Practical, prosecutorial need is a necessary ingredient but it is not, in and of itself, sufficient to justify the use of a presumption.

In later cases, the court went on to state that a rational connection between facts proved directly and ones to be inferred from them requires a 'substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend'. (Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57; see, also, Turner v. United States, 396 U.S. 398, 407, 90 S.Ct. 642, 24 L.Ed.2d 610.) Our court has exacted an even higher standard of rational connection. As we said in People v. McCaleb, 25 N.Y.2d 394, 404, 306 N.Y.S.2d 889, 897, 255 N.E.2d 136, 141, the connection must assure 'a reasonably high degree of probability' that the presumed fact follows from those proved directly. (See, also, People v. Kirkpatrick, 32 N.Y.2d 17, 343 N.Y.S.2d 70, 295 N.E.2d 753, app. dsmd., 414 U.S. 948, 94 S.Ct. 283, 38 L.Ed.2d 204.)

The Supreme Court also pointed out, at some length, that the judgment of the Legislature, provided it is based on common experience or on reliable empirical data, is to be given great respect by the courts. (United States v. Gainey, supra, 380 U.S., at p. 67, 72 S.Ct. 561; Leary v. United States, supra, 395 U.S., at p. 39, 89 S.Ct. 1532.) Given the peculiar and unique circumstance an automobile provides, which has been recognized in a number of related ways (see Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; People v. McCaleb, supra), it cannot be said that statutory recognition of the likelihood that all persons inside a car carrying quantities of drugs know about them ane are involved in their transport is irrational. ² Indeed, the 1972 Interim Report of the Temporary State Commission to Evaluate the Drug Laws states it very well:

'We believe, and find, that it is rational and logical to presume that all occupants of a vehicle are aware of, and culpably involved in, possession of dangerous drugs found abandoned or secreted in a vehicle when the quantity of the drug is such that it would be extremely unlikely for an occupant to be unaware of its presence * * *

'We do not believe that persons transporting dealership quantities of contraband are likely to go driving around with innocent friends or that they are likely to pick up strangers. We do not doubt that this can and does in fact occasionally happen, but because we find it more reasonable to believe that the bare presence in the vehicle is culpable, we think it reasonable to presume culpability in the direction which the proven facts already point. Since the presumption is an evidentiary one, it may be offset by any evidence including the testimony of the defendant, which would negate the defendant's culpable involvement.' (Controlled Substances, Dangerous Unless Used as Directed, N.Y.Legis.Doc., 1972, No. 10, p. 69.)

The situation described in the report is precisely the one before us; over a pound of cocaine was found in the car with these defendants. Moreover, as the report also notes, the presumption is evidentiary and rebuttable, whether by defendant's own testimony or by any other evidence in the case, including the inherent or developed incredibility of the prosecution's own witnesses. A jury is not to be told that it Must find defendants guilty if the prosecution proves that they and drugs were present in a car together; it is only to be told that it May so find. This affords added protection against the possibility that a presumption might operate to direct a verdict (Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, Supra; United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658, Supra; People v. Terra, 303 N.Y. 332, 335, 102 N.E.2d 576, 578, Supra; McCormick, Evidence (2d ed.), § 346, p. 830 Et seq.).

In the case before us, Garcia and Leyva each contend that minor inconsistencies in the stories told by some of the police witnesses should have operated as rebuttal though neither of them took the stand. Low, who did testify, raises this rebuttal issue even more extensively. He asserts that any testimony or evidence produced by a defendant which is directed toward negation of the presumption should serve to remo it from the jury altogether. We do not agree.

In order to evaluate Low's claim, it is first necessary to detail his testimony. The police officers who made the arrest acted on a tip from an informer, who told them that a 1969 gold Chevrolet with Florida license plates, carrying drugs, would appear at the Brooklyn side of the Williamsburg Bridge at 4:00 P.M. on that same day. The informer's call came at 2:00 P.M. Going to the bridge, police found...