People v. Rivera

• Decision Date: 01 April 1994
• Citation: 161 Misc.2d 237,612 N.Y.S.2d 782
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Joann RIVERA, Defendant. /85
• Court: New York Supreme Court

Page 782

612 N.Y.S.2d 782

161 Misc.2d 237

The PEOPLE of the State of New York, Plaintiff, v. Joann RIVERA, Defendant.

Supreme Court, New York County, Part 92/85.

April 1, 1994.

Legal Aid Society (Robert M. Baum and Stephanie Kaplan, of counsel), for defendant.

Robert M. Morgenthau, Dist. Atty. (Robert H. Silbering and Steven Nachman, of counsel), for People.

JAMES A. YATES, Justice.

Joann Rivera is charged with one count of Criminal Possession of a Controlled Substance in the First Degree as a result of her acceptance of a delivery by an undercover postal inspector of a sealed package containing a wedding album within which was secreted over three pounds of cocaine. The defendant, a thirty-seven year old married mother of four, accepted delivery of the package from the undercover postal inspector while she was sitting on the front steps of her home with her husband and four children. She was immediately placed under arrest with the unopened package on her lap. Prior to this incident she had never come into contact with the criminal justice system, and there is no evidence that she was ever the subject of an investigation by any law enforcement agency.

Ms. Rivera has moved to dismiss the indictment pursuant to C.P.L. 210.20(1)(c) and 210.35(5). Specifically, she contends that the Assistant District Attorney's instruction to the Grand Jury that it could infer that she had "actual knowledge" that the package contained cocaine from the fact that she physically possessed it was so incomplete and misleading that it "impaired the integrity of that body's deliberations and thereby rendered the indictment * * * 'defective' within the meaning of C.P.L. 210.20(1)(c)." People v. Calbud, 49 N.Y.2d 389, 392, 426 N.Y.S.2d 238, 402 N.E.2d 1140 (1980).

After hearing oral argument and upon consideration of submitted memoranda and inspection of the Grand Jury minutes, defendant's motion to dismiss the indictment is granted, with leave to the People to re-present.

The Presentation

Postal Inspector Roy Priolo of the United States Postal Inspector's Service testified that while he was on duty at his office on April 7, 1993 he received a package from U.S. Customs in Miami which was addressed to the defendant at her home. The return address on the package indicated that it was from Panama and had been sent by an individual by the name of "E. Perez."

Postal Inspector Priolo opened the package, which contained a wedding album. Concealed within the sleeve of the album were two plastic bags of cocaine weighing approximately three pounds fourteen ounces. After testing the substance concealed within the wedding album to confirm that it was indeed cocaine, he resealed it and set up a "controlled delivery" of the package to Ms. Rivera. In accordance with this plan, he arranged for a "Notice of Delivery" to be delivered to Ms. Rivera's residence at 477 Irving Avenue in Kings County on April 8th, 1993.

At noon on April 9th, 1993, Inspector Priolo, working in his capacity as an undercover Postal Inspector, arrived at Ms. Rivera's residence with the package. He was dressed as a letter carrier and was driving a United States Postal Service truck. After parking in front of her building, he exited the vehicle and observed a male and a female sitting on the stoop with "children running around."

The male, who was later determined to be the defendant's husband, asked Inspector Priolo, "Is that the package from Panama?" ¹ Inspector Priolo then asked the female if she was Joann Rivera, to which she replied, "Yes, that's my package. I called, and went to the post office yesterday looking for the package." She had done so, apparently, in response to the Notice of Delivery which she had received the day before. Inspector Priolo then stated, "You're sitting outside, I don't know who you are. You have to show me something." Ms. Rivera then handed Inspector Priolo the "Notice of Delivery" slip as well as a New York State non-driver's identification card which bore her name, address and phone number. He then handed her the package, and she signed for it and said, "Thank you".

Inspector Priolo then went back to his truck and communicated with Detective Michael Ward of the Brooklyn South Narcotics District. Detective Ward, who was in plain clothes and had accompanied Inspector Priolo to the scene with his backup team, placed Ms. Rivera under arrest while she was sitting on the front steps of her building. At the time of her arrest the unopened package containing the wedding album and cocaine was on her lap.

In her testimony before the Grand Jury, Ms. Rivera denied knowing that the package contained cocaine. She explained that she had been approached outside of the PTA room at her daughter Kathleen's school by a woman named Jackie Rodriguez. Ms. Rodriguez is the mother of Kathleen's playmate Maria, whom she has known for several years since their daughters were in Kindergarten.

According to Ms. Rivera, Ms. Rodriguez, who knows Ms. Rivera is home every day, asked her if she could receive a package for her. Ms. Rodriguez told Ms. Rivera that the package would contain a portrait of her mother, and explained that she could not have the package sent to her home because she was in the process of moving to the Bronx. She further stated that she did not want it sent to her home because it was to be a surprise birthday present for her mother.

Ms. Rivera testified that she agreed to do the favor Ms. Rodriguez asked of her. She stated that although she did not know Ms. Rodriguez' phone number or exact address, she and Ms. Rodriguez had agreed that when Ms. Rivera received the package she would call Ms. Rodriguez' future sister-in-law Lisa, who works at the pharmacy where Ms. Rivera purchases her husband's heart medication. Lisa would then advise Ms. Rodriguez that the package had arrived.

According to Ms. Rivera, Ms. Rodriguez never told her where the package was coming from. Although Ms. Rivera acknowledged, when being questioned by the Assistant District Attorney after making her initial statement to the Grand Jury, that she had never accepted a package for a friend prior to this occasion and that she and Ms. Rodriguez did not socialize, she further stated

I didn't feel there was anything wrong. Around where I live at people generally do people--for other people. Most of the people by my house I go to the store, I babysit their kids, I take them to the park, bring them to school when they need somebody to take them to school. I didn't feel this was anything wrong.

She further stated that she and Ms. Rodriguez had agreed that the package was to be addressed to Ms. Rodriguez "in care of" Ms. Rivera, although this was not done. Defendant also stated that she first spoke with Ms. Rodriguez about accepting the package for her "the week before Easter Sunday--before Good Friday", which fell on April 11th and April 9th respectively.

Ms. Rivera's account of the delivery of the package and her arrest is consistent with that of the People's witness, with one minor discrepancy. While Inspector Priolo testified that Mr. Rivera asked him, in Ms. Rivera's presence, whether the package was from Panama, Ms. Rivera denies that this occurred.

The Instructions

During deliberations on Ms. Rivera's case, the Assistant District Attorney presenting this case noted that

A member of the grand jury would also like for me to instruct you on possession as it pertains to criminal possession of a controlled substance in the first degree in this matter.

He responded by stating,

And I will now quote from the People versus Reisman * * * which is dated November 7, 1991 [sic], a section of that specific pages 348 and 349 state as follows: 'The crime of possessing dangerous drugs requires a physical or constructive possession with actual knowledge of the nature of the possessed substance. Knowledge, of course, may be shown circumstantially by conduct or directly by admission or indirectly by contradictory statements from which guilt may be inferred. Generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands, on his person, in his vehicle, or on his premises. This, of course, is an elemental inference based on common experience and all but universal probabilities. Thus, it is an ancient rule of inference or rebuttable presumption of fact that the recent and exclusive possession of the fruits of any crime warrants the inference of guilt, including, when material, knowledgeable possession.'

Conclusions of Law

Since the defendant was arrested almost immediately upon delivery of the unopened package, evidence, if any, of her knowing possession of cocaine within the package is entirely circumstantial. At the Grand Jury, she denied knowing that the package contained cocaine. In response to the Grand Jury's request for clarification regarding the meaning of "possession" as applied to this case, the Assistant District Attorney, quoting from People v. Reisman, 29 N.Y.2d 278, 285, 327 N.Y.S.2d 342, 277 N.E.2d 396 (1971), advised it that "actual knowledge of the nature of the possessed substance" may be inferred from physical possession. While he instructed the Grand Jury that this inference was "rebuttable," he failed to explain the standard to be applied when determining whether the presumption had been rebutted. This was error.

In the Grand Jury and in argument before this Court the Assistant confused two distinctly separate concepts. There is an important difference between a fact-finder's ability to either draw or reject an inference and the weight of evidence needed to overcome an inference. In the first instance, the issue is whether a presumption or inference is "conclusive", "mandatory" or "permissive". As a matter of Due Process, inferences in criminal cases are, generally speaking, permissive. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Thus, the...