People v. Mitchell
| Decision Date | 30 December 1965 |
| Citation | 272 N.Y.S.2d 523,51 Misc.2d 82 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. June MITCHELL and Curtis Herrin, Defendants. |
| Court | New York Supreme Court |
Frank S. Hogan, by Joseph P. Foley, New York City, for the people.
Anthony F. Marra, by Edward Leopold, New York City, for defendants.
Defendants move to inspect the grand jury minutes or, in the alternative, to dismiss the indictment. Defendants have been indicted for the crime of feloniously possessing a narcotic drug, one ounce and more of cannabis, in an automobile other than a public omnibus.
Defendants raise the following contentions: (1) the presumption of section 1751(4) of the Penal Law is unconstitutional in that it destroys the presumption of innocence and compels the accused to come forward with evidence to rebut it; (2) the presumption is not here applicable since, upon information and belief, the quantity of narcotics found in the automobile did not equal the amount required as a condition to invoke the presumption; (3) the narcotics were obtained as a result of an illegal search and seizure.
Section 1751(4), so far as pertinent, provides that the presence in an automobile, other than a public omnibus, of any narcotic drug, in an amount equal to or in excess of that set forth in subdivision two thereof and which under its provisions would be presumptive evidence of its possession with intent to sell, shall be presumptive evidence of its possession and control knowingly in violation of law by each and every person found in such automobile at the time such narcotic drug is found.
In People v. Russo, 278 App.Div. 98, 103 N.Y.S.2d 603, affd. 303 N.Y. 673, 102 N.E.2d 834, dealing with the analogous presumption of possession arising from the presence of weapons in an automobile, contained in former section 1898--a, the court, citing a long line of cases, stated that it was well settled that 'statutes such as section 1898--a' are not unconstitutional, where the presumption is neither conclusive nor arbitrary. As to the presumption here involved, there is likewise a rational and pragmatic connection between the facts proved in the first instance and the presumption, subject to rebuttal by any proof or explanation drawn from the totality of circumstances of the case. In accordance with People v. Russo and precedents cited, section 1751(4) is constitutional.
The second contention is based on the...
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