People v. Sacco

• Decision Date: 10 November 1978
• Citation: 64 A.D.2d 324,409 N.Y.S.2d 909
• Parties: PEOPLE of the State of New York, Appellant, v. John C. SACCO, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 909

409 N.Y.S.2d 909

64 A.D.2d 324

PEOPLE of the State of New York, Appellant, v. John C. SACCO, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Nov. 10, 1978.

Edward C. Cosgrove, Dist. Atty., Buffalo, for appellant (Judith Blake Manzella, Asst. Dist. Atty., Buffalo, of counsel).

Frank R. Nicosia, Buffalo, for respondent.

Before MOULE, J. P., and CARDAMONE, DILLON, HANCOCK and WITMER, JJ.

MOULE, Justice Presiding.

Defendant owns a two-story building located in the City of Buffalo. During 1976 the first floor of the building was leased as an upholstery shop with the exception of a small room which defendant reserved for his own use as a storage area. This room could be entered through a door which opened from inside the upholstery shop or through a door from a foyer which could be entered by an outside door in the front of the building. The second floor was leased to a dance studio and the stairway to this studio was reached through a separate door from the front foyer.

On the evening of June 16, 1976 at about 10:48 P.M. defendant went into the upholstery shop after it had been locked by the proprietor. About ten minutes later four men tapped on the door that defendant had entered and went in, with the door closing behind them. One of the men was carrying at his side a partially rolled-up grocery bag. Shortly thereafter, a neighbor heard a noise like someone hammering. About 10-15 minutes after the four men entered defendant's building, two other men entered. Approximately ten minutes later, a gunshot was heard and the six men, wearing gloves, left the premises. One of the men walked to a nearby pay telephone and said over the phone that there had been a mugging or a shooting. After the six men left, defendant was found lying in the front doorway of the upholstery shop; he yelled that he had been shot and there were bloodstains near the opened door leading from the shop to his room.

When a neighbor responded to defendant's call for help, defendant warned her that she "didn't see anything or hear anything" and that she "didn't know anything." A Buffalo police officer arrived at defendant's building shortly after midnight, at which time defendant told him that there was nobody inside the building and he should not go inside. When the officer asked defendant who shot him, defendant said, "Nobody shot me." A search of the first floor of defendant's building revealed the presence of a cardboard box on top of an air conditioner in defendant's room. Among other things, the box contained a revolver, a sawed-off shotgun with its serial numbers removed, a carbine, ammunition, license plates, knives, gloves and a shopping bag in which there was a ski mask. Additionally, a double-barreled shotgun was found partially hidden in a sofa in one of the rooms of the upholstery shop. A side door of the upholstery shop was found open.

An indictment was returned against defendant, charging him with three counts of criminal possession of a weapon in the third degree resulting from the discovery of the revolver, the sawed-off shotgun and carbine (Penal Law, §§ 265.00(3), 265.01(1), 265.02(1)), a fourth count of criminal possession of a weapon in the fourth degree resulting from the discovery of the double-barreled shotgun (Penal Law, § 265.01(4)), and a fifth count of criminal possession of a weapon in the third degree resulting from the defaced serial numbers on the sawed-off shotgun (Penal Law, §§ 265.00(7), 265.02(3)). Defendant's motion to dismiss this indictment was granted on the ground that there was insufficient evidence before the Grand Jury to sustain it (CPL, § 210.30). The People contend that the evidence presented to the Grand Jury was sufficient to support the charges in the indictment because it established defendant's possession of the weapons.

A Grand Jury indictment should not be dismissed absent a clear showing by defendant that the evidence before the Grand Jury, even if unexplained or uncontradicted, would not warrant conviction by a trial jury (People v. Gallucci, 62 A.D.2d 1129, 1130, 404 N.Y.S.2d 768, 770). Moreover, on an appeal from an order dismissing an indictment for insufficiency of Grand Jury evidence, the facts should be viewed in the light most favorable to the People (People v. Shanklin, 59 A.D.2d 588, 397 N.Y.S.2d 242; cf. People v. Cohen, 43 N.Y.2d 872, 403 N.Y.S.2d 463, 374 N.E.2d 362).

Each of the provisions of the Penal Law under which defendant was indicted requires as an element of the respective crime that defendant have possessed the weapon proscribed by the particular provision. Possession is statutorily defined in Penal Law, § 10.00(8), as having "physical possession or otherwise (exercising) dominion or control over tangible property." This definition of "possession" has been interpreted as encompassing the doctrine of constructive possession as well as physical possession (People v. Sierra,45 N.Y.2d 56, 60, 407 N.Y.S.2d 669, 671, 379 N.E.2d 196, 198; People v. Diaz, 41 A.D.2d 382, 384, 343 N.Y.S.2d 474, 476, affd. 34 N.Y.2d 689, 356 N.Y.S.2d 295, 312 N.E.2d 478; see People v. Phiefer, 43 N.Y.2d 719, 401 N.Y.S.2d 483, 372 N.E.2d 323). Since there was no evidence before the Grand Jury showing defendant's actual physical possession of the weapons, the issue narrows to whether there was sufficient evidence before the Grand Jury to show constructive possession of the weapons by defendant. ¹

Where contraband is found on premises under a defendant's control, it may be inferred that he has both knowledge and control of it (see People v. Reisman, 29 N.Y.2d 278, 286, 327 N.Y.S.2d 342, 348, 277 N.E.2d 396, 400). It is control of the premises which gives rise to the inference of unlawful possession and mere access by other persons is insufficient to defeat a charge of constructive possession (People v. Schriber, 34 A.D.2d 852, 853, 310 N.Y.S.2d 551, 552, affd. 29 N.Y.2d 780, 327 N.Y.S.2d 68, 277 N.E.2d 187). Therefore, once it is established that defendant exercised sufficient control over the premises, he may be deemed to have constructive possession of contraband found in it (see People v. Tirado,47 A.D.2d 193, 366 N.Y.S.2d 140, affd. 38 N.Y.2d 955, 384 N.Y.S.2d 151, 348 N.E.2d 608).

Possession may be proven by circumstantial evidence (People v. Strong, 42 N.Y.2d 868, 869, 397...