People v. Schriber

• Decision Date: 21 May 1970
• Parties: The PEOPLE of the State of New York, Respondent, v. Tracey SCHRIBER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 551

310 N.Y.S.2d 551

34 A.D.2d 852

The PEOPLE of the State of New York, Respondent, v. Tracey SCHRIBER, Appellant.

Supreme Court, Appellate Division, Third Department.

May 21, 1970.

Robert E. Jones, Cortland County Dist. Atty., Cortland, for respondent.

Frank E. Visco, Cortland, for appellant.

Before REYNOLDS, J.P., and STALEY, GREENBLOTT, COOKE and SWEENEY, JJ.

REYNOLDS, Justice Presiding.

Appeal from a judgment of the County Court of Cortland County, entered upon a jury verdict convicting appellant of the crimes of criminal possession of a dangerous drug, second degree (Penal Law § 220.15); criminal nuisance (Penal Law § 240.45) and possession of an implement adapted for the administration of a narcotic drug (Public Health Law § 3395).

In the fall of 1967 appellant rented an apartment in Cortland above a restaurant for use while attending college. At about 2:00 A.M. on April 27, 1968 Cortland City Police and a State Police Investigator, acting pursuant to a warrant obtained on the basis of the presence of a State Trooper at a 'pot' party hosted by appellant at the apartment in March of 1968, entered the apartment. At this time the appellant was not home but three of his friends were there are his subtenant was asleep in her bedroom. There is no indication that any smoking of marijuana was occurring at the time, but a search of the apartment resulted in the seizure of a water pipe found on a table in the living room, an Indian peace-type pipe found on the floor in the living room, a pipe and a plastic bag which contained material subsequently analyzed as 'grass' found also in the living room, an incense box and a round tin both found to contain marijuana, and some marijuana seeds on a screen under a mattress, all found in the living room. Search of the room adjacent to the living room, the 'paint room', turned up a canvas bag containing marijuana on a shelf with a box which contained two pipes. In the appellant's bedroom, a square-bowled pipe containing marijuana residue was found and taken. Analysis at the State Police laboratory disclosed the presence of marijuana residues in all the seized pipes, and the various seized vegetable matters were analyzed and it was discovered that except for some ordinary pipe tobacco, the material was marijuana and aggregated approximately 3 1/2 ounces.

We have no difficulty in affirming the criminal nuisance conviction (Penal Law § 240.45). Appellant contends that he was not at the time specified in the indictment, the time of the raid on April 27, 1968, actually 'conduct(ing) or maintain(ing) any premises, place or resort where persons gather for purposes of engaging in unlawful conduct.' (Penal Law § 240.45, subd. 2.) However, from appellant's own testimony and that of the subtenant the jury could properly come to the conclusion that on or about April 27, 1968 the appellant at least acquiesced in his apartment's use as a gathering place for marijuana smokers (People v. Campbell, 45 Misc.2d 201, 256 N.Y.S.2d 467), and knowledge coupled with acquiescence is sufficient under the statute.

However, the possession convictions (Penal Law § 220.15 and Public Health Law § 3395) cannot in our opinion be sustained. Clearly actual possession was not established, and while we feel, despite any significant decisions in this State, that a theory of constructive possession can sustain conviction (see People v. Nettles, 23 Ill.2d 306, 178 N.E.2d 361, cert. den. 369 U.S. 853, 82 S.Ct. 939, 8 L.Ed.2d 12), the evidence in the present record is insufficient to sustain criminal possession even under such a theory. In People v. Nettles (Supra at pp. 308--309, 178 N.E.2d at p. 363) the Illinois Supreme Court stated:

'We are of the opinion, therefore, that where...