Opinion
KA 01-00555.
November 21, 2003.
Appeal from a judgment of Oneida County Court (Dwyer, J.), entered December 13, 2000, convicting defendant after a jury trial of, inter alia, criminal possession of a controlled substance in the third degree.
David M. Giglio, Utica, for Defendant-Appellant.
Michael A. Arcuri, District Attorney, Utica (Carl J. Boykin of Counsel), for Plaintiff-Respondent.
Before: Present: Pigott, Jr., P.J., Green, Scudder, Kehoe, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law, the motion is granted, the indictment is dismissed, and the matter is remitted to Oneida County Court for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of criminal possession of a controlled substance in the third degree (Penal Law § 220.16) and criminal possession of a controlled substance in the fourth degree (§ 220.09 [1]). We agree with defendant that County Court erred in denying his motion to dismiss the indictment based on the legal insufficiency of the evidence at trial. The People presented evidence that, while executing a search warrant, police officers discovered a plastic bag containing a rock of crack cocaine the size of a golf ball on the bathroom floor of a trailer. Defendant and another man were in the bathroom when the officers entered the trailer, and the officers did not see either man in actual possession of the cocaine. Rather, the cocaine was discovered after both men were directed by the officers to lie side by side on the bathroom floor, defendant was handcuffed behind his back and pat-searched, and the other man was led out of the bathroom. The presence of defendant in the bathroom where the cocaine was found is insufficient, without more, to establish his possession of the cocaine ( see Matter of Dallas L., 183 A.D.2d 897, 898-899). Defendant did not reside in the trailer or exercise dominion and control over any part of it ( see People v. Butts, 177 A.D.2d 782, 784; People v. Ortiz, 126 A.D.2d 677, 678, lv denied 70 N.Y.2d 652). In addition, the cocaine was discovered in a location equally accessible to at least one other person at the time of the seizure ( see Butts, 177 A.D.2d at 784; People v. Harvey, 163 A.D.2d 532, 532-533; People v. Harris, 47 A.D.2d 385, 388; cf. People v. Dawkins, 136 A.D.2d 726). The evidence is therefore legally insufficient to establish beyond a reasonable doubt that defendant possessed the cocaine ( see People v. Torres, 45 A.D.2d 1042). In view of our determination, we do not address defendant's remaining contentions.