People v. Willoughby
| Decision Date | 01 March 1989 |
| Docket Number | AP-17 |
| Parties | The PEOPLE of the State of New York v. Michael WILLOUGHBY, Edward Guest and William Johnson, Defendants |
| Court | New York City Court |
Robert M. Morgenthau, Dist. Atty., New York County by Nicole Watkins, New York City, for the people.
Daniel W. Scott, New York City, for defendant Johnson.
Stephen H. Kaufman, New York City, for defendant Guest.
Daniel Newman, Office of Robert Baum, Legal Aid Soc., New York City, for defendant Willoughby.
Defendants Michael Willoughby, Edward Guest and William Johnson are charged with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03), a class A misdemeanor. The information alleges that all three occupied a motor vehicle when the deponent police officer observed defendant William Johnson throw a paper bag from the car to the ground. This paper bag was subsequently found to contain 31 vials of cocaine.
Defendant William Johnson moves in his omnibus motion for suppression of the physical evidence recovered and the statements made by him, and in the alternative for a hearing on the matter. He also moves for discovery and inspection. Defendant Michael Willoughby moves to dismiss the accusatory instrument pursuant to Criminal Procedure Law Sections 170.30(1)(a) and 170.35(1)(a), on the grounds that it is insufficient on its face because it fails to allege facts supporting all the elements of the offense charged. (CPL § 100.40[1][b] ). Defendants state that the information does not allege that they were ever observed to have been in physical possession of the drugs. Nor does it allege even constructive possession of the drugs, as there are no facts which state that they exercised dominion and control over the ground where the drugs were recovered. The factual portion of the information states:
Deponent is informed by P.O. Jimenez, # 11378, that informant observed that defendant [sic] knowingly and unlawfully possessed a controlled substance in that informant recovered one brown paper bag containing 31 vials of cociane [sic] from the ground upon observing defendant Johnson throw said bag from a 1988 Further, deponent states that the above-described substance is cocaine based upon deponent's examination of the above-described substance which possesses the same physical characteristics as substances deponent has previously submitted to the Police Laboratory for a chemical analysis and which have been determined to be cocaine; observation of the appearance of the above described substance and its packaging which, based upon prior experience and training is commonly used for the above-described substance; prior experience as a police officer in seizing narcotics and making narcotics arrests and professional training as a police officer with respect to the identification of narcotics.
Chevrolet in which all three defendants were seated.
When the motion to dismiss was made orally at defendants' arraignment, the court specifically inquired of the People as to the basis for the charges against defendants Willoughby and Guest. The People replied that they were simply relying upon the statutory presumption regarding the presence of drugs in an automobile (P.L. § 220.25) and noted that it need not be pleaded in the accusatory instrument. They have failed to elaborate on this position in their written response to the instant motion.
Defendants further argue that even if the People were trying to rely on the statutory presumption, the facts alleged by the People in the misdemeanor information fall squarely within one of the statutory exceptions to its operation, specifically P.L. § 220.25(1)(c), when a controlled substance is concealed upon the person of one of the occupants of the car. Accordingly, the information is facially insufficient to charge the offense of Criminal Possession of a Controlled Substance.
Section 220.25(1) of the Penal Law reads as follows:
The presence of a controlled substance in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found; except that such presumption does not apply (a) to a duly licensed operator of an automobile who is at the time operating it for hire in the lawful and proper pursuit of his trade, or (b) to any person in the automobile if one of them, having obtained the controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (c) when the controlled substance is concealed upon the person of one of the occupants.
A unanimous Court of Appeals in People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.2d 546 (1975) found that the presumption passed constitutional muster. The Leyva court noted that statutory presumptions in criminal cases arise from prosecutorial necessity. In the absence of section 220.25(1), "many drug traffickers could operate with impunity simply by ensuring that the contraband was in some part of the transporting vehicle and not on their persons." (Citation omitted), People v. Leyva, at 165, 379 N.Y.S.2d 30, 341 N.E.2d 546. Moreover, section 220.25(1) meets the test that there be a rational connection between the facts which can be proven directly and those to be inferred therefrom. That is to say, the People must prove the defendants were in the car along with a controlled substance. From this evidence, the trier of fact may draw the inference or deduction that the defendants knowingly possessed the controll substance. Of course, the Leyva court noted that:
... the presumption is evidentiary and rebuttable, whether by defendant's own testimony or by any other evidence in the case, including the inherent or developed incredibility of the prosecution's own witnesses. A jury is not to be told that it must find defendants guilty if the prosecution proves that they and drugs were present in a car together; it is only to be told that it may so find. This affords added protection against the possibility that a presumption might operate to direct The Court of Appeals in Leyva also discussed a hypothetical situation when a defendant's evidence is so conclusive that "reasonable persons could no longer believe the inference authorized by the statute." Leyva at 169, 379 N.Y.S.2d 30, 341 N.E.2d 546. In such a case, the trial court could issue a trial order of dismissal (CPL § 290.10) or direct the jury's finding on the element of possession. Leyva, at 169, 379 N.Y.S.2d 30, 341 N.E.2d 546. In addition, a conviction may be reversed on appeal if the court determines the presumption has been rebutted by defendant's evidence as a matter of law. See People v. Hargrove, 33 A.D.2d 539, 304 N.Y.S.2d 574 (1st Dept., 1969).
a verdict. Leyva, at 167, 379 N.Y.S.2d 30, 341 N.E.2d 546.
This court's own research has disclosed only two reported lower court cases which dealt with a fact pattern of drugs being thrown from an occupied vehicle. Both cases concerned the applicability of the predecessor to § 220.25, section 1751 of the Penal Law of 1939. In People v. Potter, 4 Misc.2d 796, 162 N.Y.S.2d 439 (1956), the arresting officer testified at a preliminary hearing that as he approached the vehicle, he observed one Wiggins, seated alone in the back seat of the car, remove a package of heroin from his coat pocket and throw it out of the car. Defendant Potter and a co-defendant, both seated in the front seat of the car, moved to dismiss the subsequent indictment against them for possession of the heroin in question, on the grounds that the presumption of possession was inapplicable to them. In a one paragraph decision the court noted that all three defendants were charged in the indictment with acting in concert and denied the motion without specifically ruling on the applicability of the presumption.
In People v. Mitchell, 51 Misc.2d 82, 272 N.Y.S.2d 523 (1965), as the arresting officer approached he saw an unidentified individual throw two brown paper bags containing cannabis from an automobile. Two people were seated in the vehicle. The officer's subsequent search of the automobile revealed two additional containers containing cannabis under the rubber mat of the front seat of the car. Interestingly, the old Penal Law provisi § 1751(4), the automobile presumption as to drug possession, applied only to specified large quantities of narcotics (see P.L. § 1751[2] ). Accordingly, the two defendants in Mitchell argued that only the weight of the contents of the containers found in the automobile could be considered in determining the required minimum weight for invoking the presumption. The court ruled that the total weight of the contents of all four containers was to be considered, and found that the weight exceeded the required minimum to invoke the presumption. The court also rejected the defendants' claim that the statutory presumption could be avoided merely by throwing the drugs out of the car:
The "presence" of narcotics in the automobile occupied by defendants is established by evidence of such attempt to divest themselves of possession as well as by what is actually found therein at time of search. Persons found in an automobile at the time such narcotic drug is found, whether it is actually then in the automobile or found in the vicinity after being seen to have been thrown from the automobile, are subject to the presumption (see, also, People v. Potter, 4 Misc.2d 796 ). Mitchell, 51 Misc.2d at 84, 272 N.Y.S.2d 523.
The People presumably would urge that the holdings in Potter, supra, and Mitchell, supra, are controlling...
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