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1972 Interim Report of the Temporary State Commission

By order to show cause, the defendants move for renewal and re-argument of so much of the Court’s prior decision and order, entered December 2, 1993 as denied, after an inspection of the Grand Jury minutes, that branch of their respective omnibus motions to dismiss or reduce the first count of the indictment, predicated upon the argument that it was not supported by legally sufficient evidence. Relying upon the Court of Appeals’ recent decision, the defendants request the Court to re-inspect the Grand Jury minutes and to reduce the first count of the indictment, charging the defendants with criminal possession of a controlled substance in the first degree to criminal possession of a controlled substance in the seventh degree upon the ground the People failed to adduce legally sufficient evidence establishing that each had knowledge of the weight of the cocaine. The People oppose the application.

The motion, properly designated as one to reargue based upon a subsequent authoritative decision clarifying the mensrea element for drug possession offenses which require a minimum quantity of the drug, is granted and, upon re-argument, the motion to dismiss or reduce the first count of the indictment is denied.

Criminal possession of a controlled substance in the first degree, as defined in Penal Law requires proof that the defendant knowingly and unlawfully possessed substances of an aggregate weight of four ounces or more containing a narcotic drug such as cocaine. As was acknowledged, there is a distinction between inferences that may reasonably be drawn regarding a person’s knowledge of the pure weight of a controlled substance, when it is mixed with other materials in amounts not ascertainable except by the person who created the mixture or by chemical analysis, and inferences that may reasonably be drawn by direct sensory perception. The charged offense in this case is one of aggregate weight and the amount of cocaine discovered in the trunk of the vehicle, which was occupied solely by the defendants, was almost 18 times the requisite statutory weight.

The evidence presented at the Grand Jury established the following facts. A state trooper stopped a vehicle being driven by the defendant for a traffic infraction. The defendant was a passenger in the vehicle and the car was registered in his wife’s name. The criminal defendants were en-route to their homes in Rhode Island after an overnight stay in New York City. Both defendants exhibited nervous behavior that was not commensurate with being stopped for a mere traffic violation–speeding. After ascertaining that neither defendant had a valid driver’s license, the trooper advised them that he was going to impound the car. He instructed the defendants to stand in front of the vehicle while he conducted an inventory search. While searching the trunk, the defendant attempted to flee by climbing over a chain link fence adjacent to the shoulder of the highway. In the trunk, the trooper discovered an unzipped and unlocked black canvas bag. Inside the canvas bag were two plastic bags, containing an aggregate weight of 4.4 pounds of cocaine. It is significant that the cocaine was packaged in dealership quantities. Each plastic bag was coated with an oily lubrication type substance and held a kilogram brick of cocaine. Additionally, the criminal defendant, as the driver, had access to the car keys and, concomitantly, had the ability to exercise dominion and control over the contents in the trunk.

It is well settled that knowledge may be proven circumstantially and that, generally, possession suffices to permit the inference that the possessors know what they possess. Furthermore, the statutory automobile presumption of knowing possession set forth in Penal Law is applicable, where, as here, there is a rational connection between the facts proved by the prosecution–the presence of the criminal defendants and the contraband in the car–and the presumed fact–the knowledge of the contraband in the trunk.

In sustaining the legality of the automobile drug presumption, the Court of Appeals relied upon the conclusion of the 1972 Interim Report of the Temporary State Commission to Evaluate the Drug Laws where the Commission stated that it is rational and logical to presume that all occupants of a vehicle are aware of, and culpably involved in, possession of dangerous drugs found abandoned or secreted in a vehicle when the quantity of the drug is such that it would be extremely unlikely for an occupant to be unaware of its presence.

The court does not believe that persons transporting dealership quantities of contraband are likely to go driving around with innocent friends or that they are likely to pick up strangers. The court do not doubt that this can and does in fact occasionally happen, but because the court find it more reasonable to believe that the bare presence in the vehicle is culpable, the court think it is reasonable to presume culpability in the direction which the proven facts already point. Since the presumption is an evidentiary one, it may be offset by any evidence including the testimony of the criminal defendant, which would negate the defendant’s culpable involvement.

The situation described in the report is precisely the one before the Court. Here, the probabilities justifying the inference of knowledge of not only the type of drug, but also its weight, are sufficient to make the presumption applicable. Clearly, the dealership quantities of cocaine and the manner in which it was packaged allows for the fair inference that the drugs were being transported by drug traffickers. When stopped for a mere traffic infraction, the demeanor of the driver, who also had access to the car keys and the locked trunk, further support the inference that he had control over and knowledge of the contents of the trunk. Similarly, the owner’s attempt twice to flee while the trunk was being searched also supports an inference that he knew the trunk contained a bag of cocaine. Under these circumstances, it is rational to presume that both defendants knew the unzipped bag in the trunk of a vehicle owned by the passenger’s spouse contained cocaine. Since one can presume that both defendants knew the unzipped bag in the trunk contained cocaine, the very large dealership quantities of cocaine being transported, as well as the manner in which the cocaine was packaged, fairly leads to the inference that defendants knew the aggregate weight was in excess of four ounces . The Court concludes that the competent evidence presented to the Grand Jury was legally sufficient as it established a prima facie case of criminal possession of a controlled substance in the first degree.

The Court also rejects the defendants’ contention that the legal instructions to the Grand Jury were inadequate or erroneous as to have impaired the integrity of the Grand Jury proceedings. The prosecutor adequately instructed the jury with respect to the crime of criminal possession of a controlled substance in the first degree by reading the statutory language, as well as the definitions of knowingly and possess, and the permissive automobile presumption. The Court of Appeals stated that from a mere reading of the statutory language of the drug possession offenses, requiring a particular weight element, it is evident that knowingly does apply to the weight element and any other reading would be strained. Therefore, regardless of how lawyers may have opted to strain the meaning of the statutory language, grand jurors may be presumed to have understood the statute as interpreted by the Court of Appeals. Accordingly, the Court concludes that the legal instructions, which need not be as precise as those to a petit jury, were in compliance. Contrary to the defendants’ contention, the prosecution had no duty to give a circumstantial evidence charge to the Grand Jury.

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