People v. Rodriguez

• Decision Date: 08 October 2013
• Citation: 973 N.Y.S.2d 49,2013 N.Y. Slip Op. 06495,110 A.D.3d 456
• Parties: The PEOPLE of the State of New York, Respondent, v. Bernardo RODRIGUEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 456
973 N.Y.S.2d 49
2013 N.Y. Slip Op. 06495

The PEOPLE of the State of New York, Respondent,
v.
Bernardo RODRIGUEZ, Defendant–Appellant.

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

Oct. 8, 2013.

[973 N.Y.S.2d 50]

Robert S. Dean, Center for Appellate Litigation, New York (Rachel T. Goldberg of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.

GONZALEZ, P.J., MAZZARELLI, ANDRIAS, DeGRASSE, JJ.

[110 A.D.3d 456]Judgment, Supreme Court, New York County (Jill Konviser, [110 A.D.3d 457]J.), rendered April 30, 2012, convicting defendant, after a jury trial, of criminal possession of marijuana in the second degree and criminal possession of a weapon in the fourth degree, and sentencing him to an aggregate term of nine months, unanimously affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).

The court properly instructed the jury on the subject of constructive possession ( seePenal Law § 10.00[8] ). Following the Criminal Jury Instructions (CJI2d[N.Y.] PossessionPhysical and Constructive), the court charged that in order to prove that defendant exercised dominion and control over the marijuana and stun gun he was charged with possessing, and, therefore, that he constructively possessed them, the People were required to demonstrate that he “exercise[d] a level of control over the area in which the property is found ... sufficient to give him ... the ability to use or dispose of the property.” The court also instructed the jury on the knowledge element of each crime.

Defendant argues that he was entitled to have the jury instructed that he could be convicted only upon proof that he intended to exercise dominion and control over the contraband. In defendant's view, even if he was fully aware that there was contraband in the apartment he shared with his aunt and nephew, and even if he

[973 N.Y.S.2d 51]

had unfettered control over the areas where the contraband was located, he was not guilty of possessing it since he merely tolerated his drug-dealing nephew's use of the apartment as a repository for the contraband and had nothing else to do with it. We disagree.

There is no element of intent in constructive possession. A long line of authority makes clear that knowing constructive possession of tangible property is established where the People prove knowledge that the property is present and ...