People v. Pearson

• Decision Date: 10 May 1990
• Citation: 557 N.Y.S.2d 269,556 N.E.2d 1076,75 N.Y.2d 1001
• Parties: , 556 N.E.2d 1076 The PEOPLE of the State of New York, Respondent, v. Dwayne PEARSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 269

557 N.Y.S.2d 269

75 N.Y.2d 1001, 556 N.E.2d 1076

The PEOPLE of the State of New York, Respondent, v. Dwayne PEARSON, Appellant.

Court of Appeals of New York.

May 10, 1990.

Richard S. Missan and Philip L. Weinstein, New York City, for appellant.

John J. Santucci, Dist. Atty. (Howard Meshnick, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 150 A.D.2d 732, 541 N.Y.S.2d 601, should be modified. Defendant's convictions on the first and third counts for criminal possession of a controlled substance and the sentence thereon should be vacated and those counts dismissed. The order should be otherwise affirmed.

The People's evidence was legally insufficient to establish defendant's constructive possession of the cocaine found in the back room of a grocery store where defendant was arrested. Immediately after announcing his presence, the arresting officer observed the defendant and three others exiting a back room of a grocery store and walking briskly towards the front exit. There was contraband in the back room in plain view. There was no evidence that defendant owned, rented or had control over or a possessory interest in the store or the back room (compare, People v. Watson, 56 N.Y.2d 632, 450 N.Y.S.2d 784, 436 N.E.2d 190; People v. Robertson, 48 N.Y.2d 993, 425 N.Y.S.2d 545, 401 N.E.2d 903; People v. Phiefer, 43 N.Y.2d 719, 401 N.Y.S.2d 483, 372 N.E.2d 323). Nor was there proof that defendant was involved in any drug selling or other operation being conducted there (compare, People v. Tejeda, 73 N.Y.2d 958, 540 N.Y.S.2d 985, 538 N.E.2d 337; 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).

The proof that defendant was coming from the back room is insufficient. Presence in a public place does not itself prove dominion and control over contraband discovered there (see, People v. Headley, 74 N.Y.2d 858, 859, 547 N.Y.S.2d 827, 547 N.E.2d 82, affg., 143 A.D.2d 937, 533 N.Y.S.2d 562; People v. Russell, 34 N.Y.2d 261, 264-265, 357 N.Y.S.2d 415, 313 N.E.2d 732; People v. Siplin, 29 N.Y.2d 841, 327 N.Y.S.2d 854, 277 N.E.2d 786; Penal Law § 10.00[8]; cf., People v. Dawkins, 136 A.D.2d 726, 727, 524 N.Y.S.2d 64 [defendant found standing in kitchen of apartment with vials of cocaine between her feet]. The case of People v. Tejeda, 73 N.Y.2d 958, 540 N.Y.S.2d 985, 538 N.E.2d 337, supra, cited by the People is distinguishable. There the drugs were found in an apartment in which the defendant was present and the statutory presumption of possession applied (see, Penal Law § 220.25).

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