People v. Headley

Appeal by the People from an order of the Supreme Court, Queens County (Chetta, J.), dated July 3, 1986, which granted the motions of the defendants Grafton Headley, Roxroy Haughton, William Green and Anthony Morris for a trial order of dismissal setting aside a verdict convicting them of criminal possession of a controlled substance in the first degree, criminal possession of a weapon in the third degree (seven counts), and criminal possession of marihuana in the third degree.

Ordered that the appeal from so much of the order as is in favor of William Green is dismissed, as it appears that that defendant has died (see, People v Feliciano, 68 NY2d 790); and it is further,

Ordered that the order is otherwise affirmed.

The motions by the defendants Grafton Headley, Roxroy Haughton and Anthony Morris (hereinafter the respondents) for a trial order of dismissal setting aside the verdict as against them were properly granted for the reasons set forth in the memorandum decision of Justice Chetta.

Further, as noted by our dissenting colleague, we unanimously find that the statutory presumption set forth in Penal Law § 220.25 (2) does not apply to the facts at bar since the seized drugs were not in open view (cf., People v Hylton, 125 AD2d 409, lv denied 69 NY2d 881), nor would the presumption apply to the weapons found on the premises (cf., People v Chandler, 121 AD2d 644, lv denied 68 NY2d 913).

However, unlike the situation in People v Gina (137 AD2d 555, lv denied 71 NY2d 1027) relied upon by our dissenting colleague, we find that this case is more analogous to the circumstances in People v Dawkins (136 AD2d 726). In Dawkins, the record indicates that in executing a search warrant, the police claimed that they had to use a battering ram to enter the subject apartment. In the kitchen, the police found the defendant, with a bag containing 17 vials of cocaine under her feet. A search of the premises revealed, in pertinent part, 41 bags of marihuana in the living room. This court held that the defendant could be found to be in constructive possession of the cocaine. However, in light of the fact that the People offered no evidence that "the defendant resided in the apartment, frequented it on a regular basis or otherwise exercised dominion or control over the area where the marihuana was found”, this court found that "the defendant’s mere presence in the apartment where the marihuana was found was not sufficient, in and of itself, to establish that she exercised the necessary dominion or control to warrant a finding of constructive possession of the marihuana” (People v Dawkins, supra, at 727).

Similarly, in this case, the People offered no proof that the respondents had any connection with the apartment, except their presence in the living room on the day in question, or as to how long the respondents had been in the apartment before the arrival of the police. Neither the failure of the respondents to open the apartment door nor their failure to carry identification documents warrants an inference of criminal intent. With regard to the claim that the rightful owner of the premises would not be so careless as to leave the drugs, weapons and money in the hands of innocent bystanders, we note that the People did not present any evidence that only the respondents were in the apartment at the time the police arrived. Indeed, there was some indication that an individual had escaped out of one of the kitchen windows. Further, the weapons, drugs and money found in the living room were all totally concealed in a metal box on an end table.

Accordingly, since there was no evidence presented by the People establishing that the respondents had actual or constructive possession of the drugs and weapons, the trial court properly issued a trial order of dismissal in their favor. Lawrence, J. P., Spatt and Balletta, JJ., concur.