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1
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OPINION
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EXTRACTED KEY WORDS
POSSESSION JURY APPELLANT CHARGES CRIMINAL POSSESSION WEAPONS TRIAL COURT DRUG FACTORY DRUG FACTORY PRESUMPTION REVIEW RESPONDENT MEMORANDUM APPELLATE DIVISION DEFENDANT BASIS PENAL LAW CONSTRUCTIVE POSSESSION CONVICTIONS EVIDENCE PRESENCE INFER JUDGE CHIEF JUDGE KAYE JUDGES TITONE BELLACOSA SMITH LEVINE CIPARICK WESLEY CONCUR |
THE PEOPLE &C., RESPONDENT, V. LEAH BUNDY, APPELLANT.
90 N.Y.2d 918, 686 N.E.2d 496, 663 N.Y.S.2d 837 (1997).
September 16, 1997
1 No. 244 SSM 14
(97 NY Int. 0145)
Decided September 16, 1997
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
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Submitted by Mark Gimpel, for appellant.
Submitted by Alan Gadlin, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant was charged with criminal possession of a controlled
substance in the first, second, third and fourthdegrees, criminal
possession of a weapon in the third degree and criminal use of drug
paraphanelia in the second degree. The trial court submitted one count
to the jury on the basis of the drug factory presumption (Penal Law
§ 220.25(2)) and the remaining eight counts on the theory of
constructive possession. The jury convicted defendant of all counts
charged.
The trial evidence was sufficient to establish defendant's possession
of all the narcotics and weapons recovered as the People's evidence
established more than her mere presence but her presence under a
particular set of circumstances from which a jury could infer
possession ( see People v Tirado, 38 NY2d 955, 956; see also United
States v Soto, 959 F2d 1181, 1185). In addition to defendant's
photograph which suggested a connection to this obvious drug factory,
a reasonable jury could conclude that only trusted members of the
operation would be permitted to enter an apartment containing a large
cache of drugs, money and weapons in plain view. In the particular
facts of this case, the jury could also infer that, if the drugs to
which the statutory presumption applied were part of the drug
factory's supply, all the contraband found must have been controlled
by the factory's operatives.
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