People v. Scott

• Decision Date: 05 July 1994
• Citation: 206 A.D.2d 392,614 N.Y.S.2d 739
• Parties: The PEOPLE, etc., Respondent, v. Steve SCOTT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 739

614 N.Y.S.2d 739

206 A.D.2d 392

The PEOPLE, etc., Respondent, v. Steve SCOTT, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 5, 1994.

Malvina Nathanson, New York City, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Ann Bordley, and Thomas M. Ross, of counsel), for respondent.

Before BALLETTA, J.P., and ROSENBLATT, LAWRENCE, RITTER and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldstein, J.), rendered June 1, 1992, convicting him of criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

At approximately 2:30 P.M. on August 28, 1984, two police officers began a surveillance of a building located at 30 Lott Avenue in Brooklyn, a suspected drug-dealing location. During the next hour, they observed a number of people going to and from the building's basement door. At approximately 3:30 P.M., the two officers returned to their precinct and reported their findings to their commanding officer. The two officers, accompanied by several other officers, returned to the building at about 5 P.M. After observing several other individuals go to and from the basement door for about 10 minutes, the police forcibly entered the basement of the building.

The basement consisted of a boiler room on the left, a small room on the right and a larger room in the back which was full of garbage and debris. The police searched the basement and found the defendant hiding in the boiler room underneath a pile of garbage. Although the police found a total of 588 tinfoil packages scattered throughout other parts of the basement, none was found in the boiler room. These packages were not tested. In the small room, which contained a cot and a dresser, a brown bag containing 718 tin foil packages was recovered from a drawer in the dresser. 450 of the tinfoil packages recovered from the dresser were tested and found to contain cocaine.

After a jury trial, the defendant was convicted of criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree.

On appeal, the defendant argues that the People failed to prove that he had constructive possession of the 718 tinfoil packages of cocaine recovered from the dresser drawer. We agree. In order for the People to sustain a conviction for criminal possession of cocaine where the defendant does not physically possess it and the cocaine was not found in open view, the People must prove that the defendant was in constructive possession of the cocaine, i.e., that he had "dominion and control" over the area in which the cocaine was found (see, Penal Law § 10.00[8]; People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563; People v. Pearson, 75 N.Y.2d 1001, 557 N.Y.S.2d 269, 556 N.E.2d 1076). The defendant's mere presence in an area where cocaine was found is not sufficient to establish that he exercised such dominion and control as to establish constructive possession (see, People v. Harvey, 163 A.D.2d 532, 558 N.Y.S.2d 605; People v. Davis, 153 A.D.2d 949, 951, 545 N.Y.S.2d 755; People v. Dawkins, 136 A.D.2d 726, 727, 524 N.Y.S.2d 64).

The People failed to present any evidence tending to show that the defendant resided, frequented, or had control over the basement in which the cocaine was found. Furthermore, there was a door which led to the occupied portions of the building. The People offered no proof that the defendant had any connection to the basement except his mere presence therein on the day in question (see, People v. Pearson, supra, 75 N.Y.2d at 1001, 557 N.Y.S.2d 269, 556 N.E.2d 1076; People v. Headley, 143 A.D.2d 937, 938, 533 N.Y.S.2d 562, affd 74 N.Y.2d 858, 547 N.Y.S.2d 827, 547 N.E.2d 82). Indeed, the People offered no proof that the defendant had been inside the building for any length of time. The police officers had left the area around 3:30 P.M. and returned to the building at about 5 P.M., and watched it for about 10 minutes before gaining entry. Thus, it could just as easily be inferred that the defendant had only arrived on the scene shortly before 5 P.M. and had only been in the basement for a few minutes before the police arrived (see, People v. Francis, 79 N.Y.2d 925, 582 N.Y.S.2d 982, 591 N.E.2d 1168). Moreover, the only packets that were tested for cocaine were found in a bag inside a dresser drawer in another part of the basement and not in plain view (cf., People v. Andrews, 182 A.D.2d 768, 582 N.Y.S.2d 495). Accordingly, since the defendant's possession of the cocaine was not established, the judgment should be reversed and the indictment dismissed.

Contrary to the suggestion made by our...