Opinion
225 KA 18-00220
03-18-2022
The PEOPLE of the State of New York, Respondent, v. Michael A. MIGHTY, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed as a matter of discretion in the interest of justice and on the law, the indictment against defendant is dismissed and the matter is remitted to Supreme Court, Monroe County, for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of two counts of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1], [12] ). As defendant contends and the People correctly concede, the evidence of possession is legally insufficient to support the conviction.
Although defendant failed to preserve that contention for our review because his motion for a trial order of dismissal was not " ‘specifically directed’ at" the alleged error now raised on appeal ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; see People v. Jacobs , 195 A.D.3d 1434, 1435, 145 N.Y.S.3d 502 [4th Dept. 2021] ), we nevertheless exercise our power to review his contention as a matter of discretion in the interest of justice, particularly in view of the People's concession (see People v. Woods , 26 A.D.3d 818, 819, 810 N.Y.S.2d 274 [4th Dept. 2006], lv denied 7 N.Y.3d 765, 819 N.Y.S.2d 890, 853 N.E.2d 261 [2006] ; People v. Butler , 273 A.D.2d 613, 614, 711 N.Y.S.2d 525 [3d Dept. 2000], lv denied 95 N.Y.2d 933, 721 N.Y.S.2d 609, 744 N.E.2d 145 [2000] ).
Where there is no evidence that the defendant actually possessed the controlled substance, the People are required to establish that the defendant "exercised ‘dominion or control’ over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized" ( People v. Manini , 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ; see Penal Law § 10.00 [8] ; People v. Williams , 162 A.D.3d 1544, 1545, 77 N.Y.S.3d 592 [4th Dept. 2018] ). The People may establish constructive possession by circumstantial evidence (see People v. Torres , 68 N.Y.2d 677, 678-679, 505 N.Y.S.2d 595, 496 N.E.2d 684 [1986] ; People v. Boyd , 145 A.D.3d 1481, 1481-1482, 43 N.Y.S.3d 641 [4th Dept. 2016], lv denied 29 N.Y.3d 947, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017] ), but a defendant's mere presence in the area in which contraband is discovered is insufficient to establish constructive possession (see Boyd , 145 A.D.3d at 1482, 43 N.Y.S.3d 641 ). Here, inasmuch as there was no evidence, other than his mere presence, that specifically connected defendant to the places where the contraband was ultimately found, we conclude that the People "failed to prove that [he] exercised dominion and control over the contraband, and therefore failed to prove the possession element of the counts as charged" ( Williams , 162 A.D.3d at 1546, 77 N.Y.S.3d 592 ). We therefore reverse the judgment and dismiss the indictment (see id. at 1545, 77 N.Y.S.3d 592 ).
In light of our determination, defendant's remaining contention is academic.