People v. Maricle

• Decision Date: 22 February 2018
• Docket Number: 107895
• Citation: 71 N.Y.S.3d 211,158 A.D.3d 984
• Parties: The PEOPLE of the State of New York, Respondent, v. Terry L. MARICLE, Appellant.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 984
71 N.Y.S.3d 211

The PEOPLE of the State of New York, Respondent,
v.
Terry L. MARICLE, Appellant.

107895

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 10, 2018
Decided and Entered: February 22, 2018

Pamela B. Bleiwas, Ithaca, for appellant, and appellant pro se.

Stephen D. Ferri, Special Prosecutor, Binghamton, for respondent.

Before: McCarthy, J.P., Devine, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

McCarthy, J.P.

158 A.D.3d 984

Appeals (1) from a judgment of the County Court of Cortland County (Campbell, J.), rendered July 30, 2015, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the second degree and unlawful manufacture of methamphetamine in the third degree, and (2) from a judgment of said court, rendered December 10, 2015, which resentenced defendant.

On the day in question, defendant and codefendant Kristina Yerian went to property owned by the parents of codefendant Robert Alberts. The three defendants gathered in a workshop area in the rear of a garage located a few feet from the house. A police officer drove by and noticed light smoke emitting from a missing window pane in the garage door. When he pulled into the driveway, he smelled a strong chemical odor and noticed that Alberts, who came out to talk to him, appeared nervous. The officer left but, having determined that the smoke

158 A.D.3d 985

and odor indicated an active methamphetamine lab, returned a few minutes later. At the officer's request, Alberts called Yerian out of the garage. After the officer heard noises coming from inside the garage and Alberts did not respond when asked about the presence of any other people, the officer entered the garage. Upon observing defendant seated on a stool in front of a bench in the workshop area, the officer ordered him to leave the garage.

The police thereafter obtained and executed a search warrant, resulting in the seizure from the garage and house of numerous items of equipment, solvents, reagents and precursors used in the manufacture of methamphetamine. Defendant was charged in an indictment with criminal possession of a controlled substance in the second degree and unlawful manufacture of methamphetamine in the third degree. Following a jury trial, defendant was convicted as charged.¹ County Court sentenced defendant to nine years in prison and five years of postrelease supervision on the criminal possession of a controlled substance conviction, and 2½ years in prison and one year of postrelease supervision on the unlawful manufacture of methamphetamine conviction, with the sentences to run concurrently.² Defendant appeals.

We reverse because the trial evidence was not legally sufficient to convict defendant of either count. In reviewing legal sufficiency, this Court views the evidence in the light most favorable to the People and determines "whether there is any valid line of reasoning and permissible inferences" upon which a rational jury could have found the elements of the charged crimes proven beyond a reasonable doubt on the basis of the evidence admitted at trial ( People v. Salce, 124 A.D.3d 923, 924, 1 N.Y.S.3d 417 [2015], lv denied 25 N.Y.3d 1207, 16 N.Y.S.3d 529, 37 N.E.3d 1172 [2015] [internal quotation marks and citations omitted]; see People v. Reed, 22 N.Y.3d 530, 534, 983 N.Y.S.2d 752, 6 N.E.3d 1108 [2014] ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

As relevant here, to establish criminal possession of a controlled substance in the second degree, the People were required to prove that defendant knowingly and unlawfully possessed "one or more preparations, compounds, mixtures or substances containing methamphetamine, its salts, isomers or salts of isomers and said preparations, compounds, mixtures or

158 A.D.3d 986

substances are of an aggregate weight of two ounces or more" ( Penal Law § 220.18[2] ). To establish defendant's guilt of unlawful manufacture of methamphetamine in the third degree, the People were required to prove that defendant possessed "at the same time and location, with intent to use, or knowing that another intends to use[,] each such product to unlawfully manufacture, prepare or produce methamphetamine ... [t]wo or more items of laboratory equipment and two or more precursors, chemical reagents or solvents in any combination" ( Penal Law § 220.73 ). As relevant to both charges, possession "means to have physical possession or otherwise to exercise dominion or control over tangible property" ( Penal Law § 10.00[8] ). Constructive possession can be shown when the defendant has a "sufficient level of control over the area in which the contraband was found" ( People v. Leduc, 140 A.D.3d 1305, 1306, 34 N.Y.S.3d 208 [2016] [internal quotation marks, brackets and citations omitted], lv denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ; accord People v. Turner, 27 A.D.3d 962, 963, 811 N.Y.S.2d 232 [2006] ).

A defendant's mere presence in the same location as contraband is insufficient to establish constructive possession (see People v. McGough, 122 A.D.3d 1164, 1166, 998 N.Y.S.2d 232 [2014], lv denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44 [2015] ; People v. Banks, 14 A.D.3d 726, 727, 786 N.Y.S.2d 861 [2005], lv denied 4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324 [2005] ; People v. Edwards, 206 A.D.2d 597, 597, 614 N.Y.S.2d 469 [1994], lv denied 84 N.Y.2d 907, 621 N.Y.S.2d 524, 645 N.E.2d 1224 [1994] ). Knowledge that the contraband is present is...