People v. Vasquez

Decision Date18 July 1988
Citation142 A.D.2d 698,530 N.Y.S.2d 601
PartiesThe PEOPLE, etc., Appellant, v. Gloria VASQUEZ, Respondent.
CourtNew York Supreme Court — Appellate Division

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Nikki Kowalski and Steven H. Kessler, of counsel), for appellant.

Sercarz, Schechter & Lopez, Brooklyn (Maurice H. Sercarz, of counsel), for respondent.

Before MANGANO, J.P., and BROWN, LAWRENCE, RUBIN and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Kings County (Douglass, J.), entered February 10, 1987, which, pursuant to CPL 290.10(1), set aside a jury verdict convicting the defendant of criminal possession of a controlled substance in the first degree (two counts), criminal possession of a controlled substance in the third degree (seven counts), criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree (seven counts), unlawful possession of marijuana, and criminally using drug paraphernalia in the second degree (six counts), and dismissed the indictment.

ORDERED that the order is reversed, on the law and the facts, the indictment and verdict are reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings.

When the police executed a search warrant on Apartment 1-R, 289 Harman Street, Brooklyn, on January 8, 1985, they found a narcotics "factory", albeit not in operation at the time. They found a coffee grinder used for the processing of cocaine and containing a residue of cocaine; two scales; a large spoon and two strainers, each containing a residue of cocaine; fifteen bottles of lactose, commonly used as a dilutant of narcotics; several plastic bags of cocaine weighing more than one pound and over 80% in purity; a plastic bag of heroin; a bag of marijuana; 377 foil wrapped packets of cocaine; a box of foil cut into squares; more than 12,000 glassine envelopes containing heroin; 36 boxes of glassine envelopes stamped with "trade names"; rubber stamps, stamp pads and stamp pad ink; and approximately $150,000 in cash, principally in ten and twenty dollar bills. At the time the police effected entry, Martinez and Melendez, two codefendants, were flushing cocaine down the toilet.

The defendant, two of her children and the codefendant Alvarez were seated on a couch in the living room. The codefendant Vega was sitting on a chair nearby. The cocaine-tainted coffee grinder and a commercial size roll of aluminum foil were on a snack table by the couch. Among other papers found in the living room were two identification cards made out to the defendant: one from the Puerto Rico Elections Commission and one from the New York City Department of Social Services. There was also a document from the Human Resources Administration bearing the defendant's name and listing her address as 289 Harman Street. Testimony was received that this form had been completed on November 27, 1984, when the defendant had applied for public assistance. On that date the defendant had given 289 Harman Street as her address. Women's and children's clothing were found in the front bedroom where the bulk of the narcotics were found. Although there was no testimony as to the ownership of this clothing, the defendant admitted that her children's clothing was in the apartment. The defendant had a key for the apartment. She gave that apartment as her address upon her arrest and also to the representative of the Criminal Justice Agency when she was awaiting arraignment.

In testifying in her own behalf, the defendant claimed that she and her children had been living with her sister, but had moved out after a dispute. She said that they had slept for two nights in a park and that an older daughter had suggested that she stay in the apartment, which apparently had been occupied in the past by her son. It was the defendant's contention that she had only been in the apartment one day before the raid.

The defendant's motion to dismiss at the end of the People's case for legal insufficiency (CPL 290.10) was denied by the trial court. This motion was renewed at the end of the entire case and the trial court reserved decision. Following the return of a verdict of guilty on all counts, the trial court granted the defendant's motion for a trial order of dismissal pursuant to CPL 290.10(1) on the ground that the evidence was not legally sufficient to establish the offenses.

Each of the 24 counts in this indictment charged the defendants with possession of illegal narcotics or narcotics paraphernalia. Since none of the narcotics or narcotics paraphernalia was found on the person of any of the defendants, the prosecution's case was based upon constructive possession. It is significant that the jury returned its verdict shortly after hearing a re-reading of the court's charge on constructive possession.

In deciding a motion for a trial order of dismissal under CPL 290.10(1), the trial court must limit its review solely to legal sufficiency as defined in CPL 70.10(1). In this process the court must view the evidence in the light most favorable to the People ( People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932) and all questions as to the quality or weight of the evidence should be deferred ( People v. Sabella, 35 N.Y.2d 158, 359 N.Y.S.2d 100, 316 N.E.2d 569).

We find that the evidence presented by the People on their case-in-chief was legally sufficient to establish constructive possession of the substantial quantities of narcotics and paraphernalia found in the apartment. The defendant was found there with her children; clothing belonging to her and her children were there; private papers belonging to her were there; she had a key to the apartment; she had given that apartment as her address when applying for welfare two months earlier; and she gave that apartment as her address to the police and the Criminal Justice Agency. This evidence clearly indicates such a degree of dominion and control over the apartment as to support charges of possession of the contraband found therein ( see, People v. Torres, 68 N.Y.2d 677, 505 N.Y.S.2d 595, 496 N.E.2d 684). In Torres, similar evidence was considered legally sufficient to support a conviction for possession of narcotics even though the defendant was in Puerto Rico at the time his apartment in Manhattan was raided.

It is true that the defendant attempted to negate these strong inferences of dominion and control by her testimony and the testimony of her witnesses. The defendant sought to explain away her statements to the Human Resources Administration two months earlier and the presence of her children and their belongings in the apartment as being very recent and transitory. To this extent, she created issues of credibility and weight which were properly within the domain of the jury ( People v. McCrimmon, 131 A.D.2d 598, 516 N.Y.S.2d 304, lv. dismissed 70 N.Y.2d 714, 519 N.Y.S.2d 1050, 513 N.E.2d 1318; People v. Hooper, 112 A.D.2d 317, 491 N.Y.S.2d 766). It is obvious from the verdict that the...

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18 cases
  • People v. Thompson
    • United States
    • New York Supreme Court
    • July 1, 1993
    ... ... The judge may not issue a trial order of dismissal based upon an assessment of the quality or weight of the evidence, or upon the judge's personal impression of the credibility of the witnesses (see, e.g., People v. Vasquez, 142 A.D.2d 698, 700, 530 N.Y.S.2d 601 [2d Dept.1988]; Matter of Holtzman v. Bonomo, 93 A.D.2d 574, 575, 462 N.Y.S.2d 690 [2d Dept.1983] ...         Moreover, although under the former Code of Criminal Procedure, a trial judge was empowered to set aside a guilty verdict and grant a new ... ...
  • People v. Thompson
    • United States
    • New York Supreme Court — Appellate Division
    • August 5, 1996
    ... ... In determining such a motion, the Judge does not rule based on an assessment of the quality or weight of the evidence, or upon the court's impression of the credibility of the witnesses (see, People v. Vasquez, 142 A.D.2d 698, 530 N.Y.S.2d 601; Matter of Holtzman v. Bonomo, 93 A.D.2d 574, 462 N.Y.S.2d 690) ...         While our court has never passed on this issue, in view of the strict dichotomy in criminal cases between the responsibility of a Judge and the duty of a jury, we perceive nothing ... ...
  • People v. Lleshi
    • United States
    • New York Supreme Court — Appellate Division
    • November 14, 2012
    ...N.Y.2d 530, 536, 483 N.Y.S.2d 654, 473 N.E.2d 6;compare People v. Vasquez, 160 A.D.2d 751, 752, 553 N.Y.S.2d 817,with People v. Vasquez, 142 A.D.2d 698, 699–700, 530 N.Y.S.2d 601). A defendant is, however, entitled to factual review of the evidence supporting a guilty verdict on an appeal t......
  • People v. Williams
    • United States
    • New York Supreme Court
    • July 22, 1988
    ... ... Reyes, 126 A.D.2d 681, 510 N.Y.S.2d 909). Constructive possession can be proved by evidence establishing dominion or control (see, e.g., People v. Watson, 56 N.Y.2d 632, 450 N.Y.S.2d 784, 436 N.E.2d 190; People v. Vasquez, 142 A.D.2d 698, 530 N.Y.S.2d 601) or, in some cases, by reliance on a statutory presumption which permits a jury to infer dominion or control from other proven facts (see, e.g., Penal Law, §§ 220.25 and 265.15) ...         When contraband is seized from a person's physical or actual ... ...
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