Opinion
No. 570566/19
03-19-2024
The People of the State of New York, Respondent, v. Timothy Key, Defendant-Appellant.
Unpublished Opinion
PRESENT: Tisch, J.P., James, Perez, JJ.
PER CURIAM
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Tara A. Collins, J.), rendered July 30, 2019, convicting him, upon a plea of guilty, of criminal possession of a controlled substance in the seventh degree, and imposing sentence.
Judgment of conviction (Tara A. Collins, J.), rendered July 30, 2019, reversed, on the law, and the accusatory instrument dismissed.
The accusatory instrument charging criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03) was jurisdictionally defective. The instrument recited, in relevant part, that when police entered apartment 3F at a specified address pursuant to a search warrant, a "separately apprehended Amanda Montalvo opened the door" and defendant was "inside a bedroom"; and that police recovered marijuana and Xanax from a hall closet, a shoe box on the kitchen floor, and from the top of an entertainment center.
These facts, even when taken together with all reasonable inferences which can be drawn from those facts (see People v Jackson, 18 N.Y.3d 738, 747 [2012]), were insufficient to demonstrate reasonable cause to believe that defendant constructively possessed the contraband, i.e. that he had dominion and control over the area where it was located (see Penal Law §§ 220.03, 10.00[8]; People v Manini, 79 N.Y.2d 561, 573 [1992]). Absent allegations that defendant resided in the premises, frequented it on a regular basis, or was engaged in any drug-related activity there (see People v Pearson, 75 N.Y.2d 1001, 1002 [1990]; People v Dawkins, 136 A.D.2d 726, 727 [1988]), his mere presence at the apartment when contraband was discovered during execution of a search warrant was insufficient to demonstrate reasonable cause to believe that he exercised dominion or control over the contraband (see People v Headley, 143 A.D.2d 937 [1988], affd 74 N.Y.2d 858 [1989]; see also People v Brown, 240 A.D.2d 675 [1997] [defendant, girlfriend of apartment's lessee, was merely present when contraband discovered during execution of search warrant in apartment]; People v Gil, 220 A.D.2d 328 [1995] ["Nothing other than defendant having been inside the apartment connects defendant to the apartment or the drugs"]).