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The investigator then approached the man in the parking lot


A criminal investigator was assigned to investigate border crimes. He approached a man outside a hotel and asked to speak with him. The investigator had been conducting surveillance of the man since the day before after receiving a tip from an informant. Eventually, the investigator found a bag of what he suspected to be marihuana in the man’s backpack. The tests confirmed it was 15.9 ounces of marijuana. The man was then escorted to his room where his co-offender had been awakened by another agent who was already present in the room. The agents searched the luggage and room. They then found four small bags containing rocks of crack cocaine and cocaine which had an aggregate weight of seven grams was found inside a closed camera bag, which also contained a roll of approximately $500 in cash and the co-offenders identification. The man and his companion were then arrested and read their Miranda rights.

After a hearing, the court denied the offender’s motion to suppress the drugs and other evidence. The court, however, precluded the complainant from introducing any of the offender’s statements to police after the discovery of the marihuana in his backpack. As a result, no Huntley hearing was held.

Sources revealed that prior to the trial the man’s co-offender entered a plea of guilty to criminal possession of a controlled substance in the third degree, the sole count against her, admitting she possessed the cocaine in her camera bag with intent to sell it.

After a jury trial, the man was convicted of criminal possession of a controlled substance in the third degree for possessing the cocaine found in the camera bag with intent to sell it, and unlawful possession of marihuana. He was sentenced, as a second felony offender, to a prison term of five to ten years on the cocaine possession charge and to a concurrent fifteen-day term for the marihuana charge.

The offender however filed an appeal from the decision convicting him of the crime of criminal possession of a controlled substance in the third degree and the violation of unlawful possession of marihuana. He challenges the court’s ruling and the sufficiency and weight of the evidence supporting the cocaine possession charge.

With regards to the ruling in which it credited the agent’s testimony, the court found no error in the denial of the offender’s motion to suppress the drugs found in his backpack or in the camera bag.

The criminal investigator testified that he had conducted surveillance of the man and his companion driving to various locations for stops of short duration the evening prior he had learned from hotel employees that the occupants of room had paid cash for the room and had no checkout date and, as the offenders walked past him in the lobby, he smelled unburned marihuana.

The investigator then approached the man in the parking lot, displayed his badge and asked if the man would speak to him. The investigator further asked the man if he smoke and the man replied yes.

Based on records, the investigator conceded that once he found marihuana in the man’s backpack, the man was not free to leave although he did not advise him of his Miranda warnings or arrest him at that point. Instead, the investigator asked the man if he was a guest in the hotel and then asked if there was any more marihuana in his room, to which the man responded no.

Under all of the circumstances, the court agrees with the county court’s conclusion that the man’s consents to search were voluntary. Further, the court correctly ruled that while the complainant failed to prove at the hearing that the man’s co-offender consented the agent’s to enter their room moments before the investigator arrived with the man, since he had validly consented to the search of the room, the search results were admissible under the inevitable discovery doctrine.

As to the man’s challenge to the legal sufficiency and weight of the evidence supporting his conviction for knowingly possessing the crack cocaine with intent to sell it under count one. Initially, the offender’s attorney’s generalized motion to dismiss the count after the close of the complainant’s case. But, it was inadequate to preserve the particular claims and rose on appeal regarding the sufficiency of the proof of his dominion and control over the hotel room or his intent to sell the cocaine.

In addition, given the man’s parallel challenge to the weight of the evidence, the court has reviewed his legal sufficiency claim and exercised the interest of justice jurisdiction to reverse the conviction on the count.

On the issue of the man’s knowing possession, the cocaine in issue was found inside the camera bag in the hotel room. As such, the man did not have actual physical possession and the drugs were not in plain view. Accordingly, the complainant was compelled to prove that the man constructively possessed the secreted drugs and adduced adequate proof as to neither.

The man’s co-offender, who had pleaded guilty to cocaine possession but had not yet been sentenced, testified under a subpoena that she and the man had stayed in the room together for two nights, that the camera bag, camera, money and identification card found inside the camera bag were hers, but denied the cocaine was hers or knowing to whom it belonged. She also testified she had entered a guilty plea to criminal possession because she had a prior drug related history. In addition, no hotel employees testified. The room was not registered in the man’s or the co-offender’s name but, rather, in the name of a woman who the man had indicated was a relative. The said relative was unable to locate at the address given and no other persons were seen coming and going from that room. Moreover, no evidence was presented that any of the man’s clothing or belongings was found in the room, that he had a key to the room or had even given the co-offender’s money to pay for the room, or that he knew there was cocaine in her camera bag.

While possession may be joint the link between the man, the hotel room and the secreted drugs, it was however insufficient. Neither the fact that the man came and went from the hotel room, nor any conduct observed during the police surveillance, nor the list of first names with figures next to the names found in the man’s wallet in his pocket established the man’s exercise of dominion and control over the hotel room, his co-offender or the camera bag.

Also, in weighing the evidence, the court stated that the finding of the man’s constructive possession of the cocaine was not supported by the weight of evidence. Therefore, the man’s conviction for criminal possession of a controlled substance should be reversed and dismissed. Further, the man’s remaining claims need not be addressed.

Consequently, it was ordered that the judgment is modified, on the facts and as a matter of discretion in the interest of justice, by reversing so much thereof as convicted the man of the crime of criminal possession of a controlled substance in the third degree under count one of the indictment and the said count dismissed and sentence imposed thereon vacated.

If you want to contest the decision of the court against you and you want to seek legal advice, ask assistance from the New York City Drug Crime Lawyer. Whenever you got engaged on matters involving controlled substance, the NYC Cocaine Possession Attorney at Stephen Bilkis and Associates office can provide you legal help.

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