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1
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OPINION
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EXTRACTED KEY WORDS
JURY PRESUMPTION COURT POSSESSION DEFENDANT VERDICT TRIAL COURT CRIMINAL POSSESSION CONTROLLED SUBSTANCE APPELLATE DIVISION PENAL LAW HARMLESS ERROR ANALYSIS GENERAL VERDICT EVIDENCE GUILTY DRUG FACTORY CONSTRUCTIVE POSSESSION CONVICTION ILLEGAL THEORY UNITED STATES NY2D SUBMITTING SUPREME COURT FORCIBLE COMPULSION CONSTITUTING CRIMINAL LIABILITY SUBMISSION PHYSICAL FORCE INDICTMENT |
THE PEOPLE &C., RESPONDENT, v. ANDRE MARTINEZ, APPELLANT.
83 N.Y.2d 26, 628 N.E.2d 1320, 607 N.Y.S.2d 610 (1993).
December 21, 1993
2 No. 255 (1993 NY Int. 272)
Decided December 21, 1993
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Irma B. Ascher, for Appellant.
Nicoletta J. Caferri, for Respondent.
HANCOCK, J.:
Defendant was convicted by a jury of criminal possession of a
controlled substance in the third degree (Penal Law § 220.16(1)). In
submitting the criminal possession count, the trial court instructed
the jury that it could find defendant guilty of either actual
possession or constructive possession and that it could find that
defendant knowingly possessed the drugs by applying the "drug-
factory" presumption (see, Penal Law § 220.25(2)). The jury returned a
general verdict of guilty on the criminal possession count without
specifying the basis for its finding. On appeal the Appellate Division
held that the presumption should not have been charged because the
drugs were not in plain view and there was insufficient evidence to
evince an intent to engage in a drug factory operation. That court
nevertheless affirmed, applying a harmless error analysis and finding
overwhelming evidence to establish defendant's guilt on the basis of
constructive possession.
Leave has been granted primarily to address defendant's contention
that harmless error analysis was improperly employed where the jury
has returned a general verdict and it is thus impossible to determine
whether it convicted defendant under an erroneously submitted theory.
Under the particular circumstances in this case, we agree with
defendant that harmless error analysis was inappropriate. Accordingly,
there should be a reversal and a new trial.
I
Defendant was tried together with co-defendant Alphonso Mejie, the
lessor of apartment 7B, a one-room apartment with attached kitchen in
a building on 88th Street in Queens, where undercover police had
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