The People, Respondent,v.Sandra Diaz, Appellant.

Brief

N.Y.January 6, 2015

APL-2013-00191 To be argued by KAREN SCHLOSSBERG (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - SANDRA DIAZ, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov VINCENT RIVELLESE KAREN SCHLOSSBERG ASSISTANT DISTRICT ATTORNEYS Of Counsel MARCH 27, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................... ii INTRODUCTION................................................................................................................ 1 EVIDENCE AT TRIAL ...................................................................................................... 5 The People’s Case ....................................................................................................... 5 The Defense Case ..................................................................................................... 10 The People’s Rebuttal Case ..................................................................................... 14 POINT AMPLE EVIDENCE SUPPORTED DEFENDANT’S CONVICTIONS ........................................................................................... 15 Criminal Possession of a Controlled Substance .................................................... 16 Unlawfully Dealing with a Child ............................................................................. 21 CONCLUSION ................................................................................................................... 35 -ii- TABLE OF AUTHORITIES FEDERAL CASES Jackson v. Virginia, 443 U.S. 307 (1979) ........................................................................... 15 STATE CASES People v. Acosta, 80 N.Y.2d 665 (1993)............................................................................ 15 People v. Arriaga, 45 Misc. 2d 399 (City Ct. Syracuse 1965) .......................................... 32 People v. Danielson, 9 N.Y.3d 342 (2007) ........................................................................ 15 People v. Delamota, 18 N.Y.3d 107 (2011) ...................................................................... 15 People v. Diaz, 100 A.D.3d 446 (1st Dept. 2012) .............................................................. 4 People v. Edwards, 38 A.D.3d 1133 (3rd Dept. 2007) .................................................... 28 People v. Fiedler, 31 N.Y.2d 176 (1972) ........................................................................... 27 People v. Manini, 79 N.Y.2d 561 (1992) ........................................................................... 16 People v. Reisman, 29 N.Y.2d 278 (1971) ......................................................................... 20 People v. Torres, 68 N.Y.2d 677 (1986) ....................................................................... 16-17 STATE STATUTES L. 1965, c. 1030 ..................................................................................................................... 31 L. 1992, c. 362 ................................................................................................................. 23, 31 CPL 330.30 .............................................................................................................................. 3 Or. Rev. Stat. § 163.547 ....................................................................................................... 28 P.L. § 10.00(8) ....................................................................................................................... 16 P.L. § 220.03 ....................................................................................................... 16, 22, 24, 31 P.L. § 220.50 .......................................................................................................................... 22 -iii- P.L. § 220.50(2) ..................................................................................................................... 25 P.L. § 221.05 .......................................................................................................................... 33 P.L. § 221.10(1) ..................................................................................................................... 34 P.L. § 221.40 .......................................................................................................................... 33 P.L. § 260.20(1) ......................................................................................................... 22, 23, 28 P.L. § 260.20(2) ..................................................................................................................... 32 Former P.L. § 484(2) ............................................................................................................ 30 Former P.L. § 484(3) ............................................................................................................ 32 OTHER AUTORITIES Black’s Law Dictionary ........................................................................................................ 26 William C. Donnino, Practice Commentaries to Penal Law § 260.20, McKinney’s Cons. Laws of N.Y., Book 39 ..................................................... 23, 29-32 Gilbert, Criminal Law and Practice of New York, Code of Criminal Procedure Penal Law, 47th Edition, 1964 .................................... 30 Goodman and Leventhal, Charges to the Jury and Request to Charge in a Criminal Case, § 17:12 ............................................................................... 29 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- SANDRA DIAZ, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Susan Phillips Read, Judge of the Court of Appeals, defendant Sandra Diaz appeals from an order issued November 13, 2012 by the Appellate Division, First Department. By that order, the Appellate Division affirmed a judgment rendered July 20, 2010, in Supreme Court, New York County (Michael Sonberg, J.), convicting defendant, after a jury trial, of one count of Criminal Possession of a Controlled Substance in the Third Degree (P.L. § 220.03) and four counts of Unlawfully Dealing With a Child in the First Degree (P.L. § 260.20[1]) and sentencing her to three-year terms of probation on each count, all to run concurrently. Defendant has completed her sentence. Early in the morning of April 8, 2009, police officers who had been investigating the activities in Apartment 2B of a building located on East 119th Street -2- between Second and Third Avenues in Manhattan executed a search warrant at that location. When they entered the apartment, they found defendant standing in the doorway of her bedroom. Diaz’s three children, their father, Matias Rivera, and Diaz’s niece were present in the apartment as well. Inside defendant’s bedroom, officers discovered over 30 bundled glassines of heroin in two different locations, including about 10 from a cup on top of the dresser next to defendant’s bed. They also recovered almost 30 glassines containing heroin residue and 35 pills of Suboxone, a narcotic, from different areas in the room. Inside a dresser drawer in defendant’s bedroom, they found a potpourri of narcotics paraphernalia and proceeds, including an electronic scale, unused glassine envelopes, lactose (a cutting agent), rubber bands, a strainer, a small spoon, an inkpad, inkpad stamps, and $385 in cash. By Special Narcotics Indictment Number 1738/2009, defendant and Rivera were jointly charged with Criminal Possession of a Controlled Substance in the Third Degree for possessing the heroin with the intent to sell it; Criminal Possession of a Controlled Substance in the Fifth Degree for possessing the Suboxone, also known as buprenorphin; three counts of Criminally Using Drug Paraphernalia in the Second Degree, one each for possessing the lactose, the empty glassines, and the scale under circumstances evincing an intent to use those items for the purpose of preparing narcotics for sale or unlawfully packaging or dispensing them; and four counts of Unlawfully Dealing with a Child in the First Degree for knowingly permitting the four -3- children in a place where they knew or had reason to know narcotics-related activity was taking place. After suppression motions and a hearing not at issue on this appeal, on April 26, 2010, defendant and Rivera proceeded to a joint trial before the Honorable Michael Sonberg and a jury. On May 6, 2010, the jury acquitted defendant of possessing the heroin with the intent to sell it, but convicted her of the lesser included offense of seventh-degree possession. The jury also acquitted defendant of possessing the Suboxone and the paraphernalia. The jury convicted of her of all four counts of first-degree unlawfully dealing with a child.1 On or about June 16, 2010, defendant filed a motion pursuant to CPL 330.30 to set aside the verdict on the grounds that the evidence was legally insufficient to sustain her convictions and that the statute underlying her convictions for unlawfully dealing with a child was unconstitutionally vague. On July 20, 2010, Justice Sonberg denied the CPL 330.30 motion and sentenced defendant as noted above. On appeal to the Appellate Division, defendant argued that her convictions of both the seventh-degree possession and the first-degree unlawfully dealing were based on legally insufficient evidence or, alternatively, were against the weight of the evidence. She contended that the statute defining the crime of unlawfully dealing with 1 On May 7, 2010, co-defendant Rivera was convicted of seventh-degree possession with respect to both the heroin and the Suboxone. He was also convicted of all three paraphernalia counts and all four counts of first-degree unlawfully dealing with a child. Rivera has filed a notice of appeal, but has not yet perfected an appeal. -4- a child was unconstitutionally vague. She also complained that four of Justice Sonberg’s evidentiary rulings deprived her of a fair trial. And, finally, she urged that her sentence of probation was excessive. In an order dated November 13, 2012, the Appellate Division unanimously affirmed defendant’s conviction. The court concluded that the verdict was supported by legally sufficient evidence and was not against the weight of the evidence. People v. Diaz, 100 A.D.3d 446, 446-447 (1st Dept. 2012). The court found that the evidence supported the conclusion that defendant exercised dominion and control over the drugs and paraphernalia found in her apartment. Moreover, the court held that the evidence established the elements of first-degree unlawfully dealing with a child – “including the element of ‘activity involving controlled substances’” – because the evidence proved that defendant “knew or should have known that a large amount of heroin and drug paraphernalia were in her apartment” where young children lived. Id. at 447. The court rejected defendant’s constitutional challenge as untimely and unpreserved. Alternatively, the court concluded that the statute was not unconstitutionally vague. The court also denied all four of defendant’s evidentiary challenges: two were unpreserved and either without merit or harmless; the other two were rejected on their merits. And the court found no reason to reduce defendant’s sentence. Id. -5- On appeal to this Court, defendant again urges that the evidence is legally insufficient to support her convictions. EVIDENCE AT TRIAL The People’s Case At about 6:15 a.m. on April 8, 2009, a team of officers from the Narcotics Bureau for Northern Manhattan, including Detective ROBERT MORTENSEN and Lieutenant KENNETH PASCALE, went to a building located on East 119th Street between Second and Third Avenues in Manhattan (Mortensen: 33-34; Pascale: 135). They had been investigating the activity taking place in Apartment 2B in that building for almost a year, and they were armed with a warrant authorizing them to search that apartment as well as the person of Matias Rivera (Mortensen: 35-37; Pascale: 135-136; Exhibit 2: photograph of door to Apt. 2B ). The team broke open the door and entered to find Rivera, who had come to the front door wearing his pajamas (Mortensen: 37-39, 84-85, 112, 115-16, 120; Exhibit 3: photograph of Rivera). Mortensen ordered Rivera to the ground and continued into the apartment (Mortensen: 40, 115, 120). He next encountered defendant Sandra Diaz, who was standing in her pajamas in the doorway of the first bedroom – “halfway in the room and halfway out” (Mortensen: 40, 86, 88-89, 114, 117, 121-22; Exhibit 4: photograph of Diaz; Exhibit 20A: diagram of apartment with markings; Exhibit 21: photograph of hallway and entrances to two bedrooms). -6- Mortensen checked that bedroom and found no one else there. In the second bedroom, which was next to the first, there were two young children sitting on a bed. They were awake and seemed startled (Mortensen: 41, 43, 108, 121-23; Exhibit 20A). Meanwhile, Lieutenant Pascale had gone straight to the kitchen and living room to make sure there was no danger lurking there. Two girls came towards him from that direction. They were between the ages of 12 and 15 and had apparently been sleeping in the living room (Pascale: 136-38). Mortensen went back to the first bedroom where he had seen Diaz standing. The room contained a bed with dressers on either side. There was a glass cup or candleholder sitting on top of the dresser closest to the door. Inside the cup were 10 or 11 glassine envelopes of heroin. The glassines were stamped “gold star” (Mortensen: 43-45, 47-49, 87, 123, 131; Exhibit 6: photograph of glassine envelopes). In another cup on the same dresser were three glassine envelopes stamped “gold star” containing heroin residue (Mortensen: 70-71; Exhibit 16: photograph of 3 glassine envelopes). Mortensen opened the top drawer of that dresser and found an electronic scale, an ink pad, three ink stamps, assorted pieces of mail and toiletry items, $385 in cash, and a burlap sack inside of which were a box of rubber-banded packages of unused glassine envelopes, a jar of lactose, rubber bands, a strainer, and a small spoon (Mortensen: 45, 54-61, 63, 71-72, 77, 79, 110-11, 127; Exhibits 9, 11-14: photographs -7- of contents of drawer; Exhibit 10: currency; Exhibit 15: strainer, spoon; Exhibit 17: mail, copies of ID cards). In another part of the bedroom, on a windowsill, sat a small plastic storage container with three drawers (Mortensen: 50-52; Exhibit 8: photograph of storage container). In one of those drawers, Mortensen found an additional 20 glassines containing heroin, as well as some jewelry. The glassines were also stamped “gold star” (Mortensen: 45, 49-50, 53, 87, 89; Exhibit 7: photograph of the drawer’s contents; Exhibit 23: photograph of the bedroom where heroin was recovered). In total, 31 “gold star”-stamped glassines containing heroin were recovered from the bedroom (Mortensen: 101-02; New York City Police Department forensic analyst JORDAN CHIN: 151-56, 163-65). Another three glassines were also stamped “gold star” but contained only heroin residue. Another 26 glassines containing heroin residue, stamped with different logos, were also recovered from the bedroom (Mortensen: 103; Chin: 166-67, 179, 182-84; Stipulation: 257). Mortensen also recovered an unlabeled prescription bottle of 35 Suboxone pills, which contained the controlled substance buprenorphine and could be used to treat opiate addiction (Mortensen: 67-68, 128; Chin: 151, 159-61, 163, 168-70). Defendant and Rivera were placed under arrest. Both of them said they lived in the apartment on East 119th Street (Mortensen: 91-92, 97, 127). Defendant’s and Rivera’s driver’s licenses both listed that apartment as their home address (Exhibit -8- 18). Defendant’s name was on the lease and the Con Edison account (Mortensen: 97- 99, 118-19). HELENA WILLIAMS-MURPHY, a child protective specialist with the New York City Children’s Services agency, inspected the apartment on multiple occasions, making both announced and unannounced visits. She interviewed defendant and Rivera, as well as the children who were living in the home. The children who lived there regularly were six, seven, and twelve years old at the time of trial; they did not appear to be malnourished or abused, and they seemed to be doing well in school. Williams-Murphy did notice that, while the apartment was small, the furniture appeared to be “very expensive.” At one point during the investigation, in December 2009, Williams-Murphy asked Rivera about the fact that his daughter was aware of the drugs that had been found in the home. Rivera responded that the child had walked in on him once or twice when defendant was not at home and that he had told the child to leave the room. He claimed that he later talked to her about the negative effects of drug use (Williams-Murphy: 184-99). Detective ALFRED HERNANDEZ, an expert in the field of street-level narcotics and narcotics investigations, had been with the New York City Police Department for over 23 years and had received intensive training about the narcotics trade, with regular monthly updates about changing tactics and methods of operation being used to package and sell narcotics in New York. He had participated in several thousand arrests during his career, more than a third of which had involved heroin, -9- and he provided regular training to other investigators and undercover officers as well (Hernandez: 217-21). A “heroin mill” is a place where heroin gets prepped and packaged. In such a mill, one is likely to find heroin, new glassines, scales, stamps, ink pads, and rubber bands. Heroin usually arrived in the United States in a pure form and was then mixed with cutting agents – usually white, powdery substances – in order to stretch out the quantity to maximize profit. Lactose, which was often used to cut cocaine, was sometimes used to cut heroin. Buprenorphine, a drug used in the treatment of heroin addicts, was sometimes used as a cutting agent for heroin as well. The mixture was then sold in small pieces of wax paper, referred to as glassine envelopes. Sellers used spoons or small knives to put the heroin into the glassine. No scales were used at that point in the process, because the amounts were too small. Each glassine contained one dose for the average user. Although a heavily addicted user might use multiple glassines a day, the typical user purchased one to two glassines of heroin in a given day. The market rate for a glassine of heroin at the time of the search warrant execution was $10. A seller would usually stamp the outside of the package with a label so the users could identify it as his brand. Once the glassines were ready for sale, dealers typically used tiny rubber bands to package ten glassines together into what was referred to as a “bundle”; bundling made it easier to keep track of quantities without having to count individual glassines. A bundle was therefore worth $100 (Hernandez: 221-226, 228-31, 233, 245-47). -10- Anyone buying several bundles of heroin would clearly not be using it for their own personal use. If a person’s habit was that intense, he would not buy individual glassines; he would purchase the heroin by the gram. All of the heroin contained in 31 glassines together would be approximately two grams of heroin. Purchased by the gram, that amount of heroin would cost $160, whereas 31 glassines would cost $310. It “wouldn’t make any sense” for an addict to buy so many separate glassines; he would be paying much more than necessary. Hernandez had “never seen” a user do that. Any addict looking to purchase that much heroin would “find a gram seller”(Hernandez: 248-49). The Defense Case Defendants MATIAS RIVERA and SANDRA DIAZ began dating in 1989. In the ensuing years, they had three children together. They lived with them and Diaz’s daughter from an earlier relationship in Apartment 2B of a building located on East 119th Street between Second and Third Avenues in Manhattan (Rivera: 270-71; Diaz: 303). Rivera began using heroin and marijuana in 1993 (Rivera: 271-72). He was convicted of a theft-related offense in 1995. Diaz broke up with him at various times on account of his addiction. She did not want him close to her or the children when he was using drugs. Rivera would sometimes stop using, but he always started again (Rivera: 271-73). In April 2004, their youngest child was born. They were having -11- “problems” at that point, so Diaz asked Rivera to leave. After he moved out, he would come to visit, but he did not live there (Diaz: 304). At the time of trial, Diaz was a student and was gone two evenings a week from 6:00 until 9:45 (Diaz: 305, 312-13). On those nights that Diaz had school, Rivera would watch the children (Diaz: 305, 312-13). Rivera and Diaz were not romantically involved at that point. He was receiving mail at the apartment, and when he renewed his driver’s license in January, he listed it as his address. But he did not have a key (Rivera: 273-74). Instead, he was staying with his aunt on Park Avenue near 104th Street and sleeping at Diaz’s apartment only on the nights he was taking care of the children (Rivera: 273, 285). Rivera had lost his job in a parking garage the previous December. He still made a little money doing work off the books for a company that owned buildings. But he was depressed, and he was using heroin every day. The only way to get heroin in his neighborhood was in glassines, but he got a discount for buying in bulk, which he did to minimize the risk of being arrested. When he could not afford heroin, Rivera sometimes used Suboxone. He got that from a friend in a drug treatment program (Rivera: 274-77). Diaz never saw him use heroin, and she never noticed him under the influence of the narcotic around the children (Diaz: 313). On April 7, 2009, Rivera went to the apartment with some of his personal items (Rivera: 277). They were planning to take the children to Great Adventure (Rivera: 283; Diaz: 305). Their three children and Diaz’s niece were all staying in the -12- apartment with defendant and Rivera. The oldest daughter and the niece were sleeping on the sofa in the living room (Diaz: 305-06). That night, defendant and Rivera were in Diaz’s bedroom talking and watching television. At some point, defendant started feeling sleepy, so she said goodnight to Rivera and went to sleep in the children’s bedroom with the younger children (Diaz: 306). Defendant either always slept in the children’s bedroom when Rivera stayed over (Rivera: 277), or she did so on that night because she worried her bed was infested with bedbugs (Diaz: 306-07, 309). When the police arrived, Rivera was alone in defendant’s bedroom with the door locked (Rivera: 300-01). Diaz was asleep in the other bedroom with the children when Rivera came in and told her that someone was trying to break into the apartment (Diaz: 306-07). Then she saw the police officers come in. They took her out into the hallway in her t-shirt and underwear. She saw that they had a dog, so she warned them that she had a bedbug infestation, and they did not bring the dog inside the apartment (Diaz: 307-308). Defendant understood why she was arrested: the police had recovered heroin in her bedroom (Diaz: 310-11). But the narcotics recovered during the search belonged to Rivera. He had bought 35 glassines of heroin from his dealer the previous night, before he had gone to defendant’s apartment. He had gotten that many so he would have enough to last the two to three days the family was going to be out of the city at Great Adventure (Rivera: 278-80, 283, 298). He had also brought -13- into the apartment some empty glassines with heroin residue. He had already used the heroin from those glassines, but he was holding on to them because he might later lick them if he did not have anything else to get high with. Rivera also brought with him a little brown bag that contained a scale, lactose, rubber bands, stamps, a strainer, and a spoon. But those items did not belong to him. He was just holding them for Ricardo Vasquez, a friend who was serving time in jail (Rivera: 278-80, 282, 289-90, 296, 298). He brought those items with him when he went to defendant’s apartment because he did not trust his aunt with them; she would kick him out of her apartment if she knew he had them (Rivera: 281, 300). Rivera put the heroin he planned to consume in a cup on the dresser. The rest he put in the dresser drawer (Rivera: 298). For her part, defendant had no idea there was heroin in the apartment. She did not see the heroin in the cup on the dresser right next to her bed. Neither it nor the paraphernalia belonged to her (Diaz: 308, 312-13, 315; Exhibit 6). One of the items in the dresser drawer with the rubber stamps and other paraphernalia Rivera had brought with him was a felt ink stamp pad. But that stamp pad belonged to defendant; she used it for her paperwork (Rivera: 297-98; Diaz: 318). The drawer contained defendant’s stamp pad, her mail, and her son’s insurance card, among other things, but she had no idea that the stamps or the scale were in there (Diaz: 318-19). And Rivera had not noticed the $385 that was in the drawer; in fact, -14- neither he nor defendant had put it there. It did not belong to either of them (Rivera: 282; Diaz: 317-18). Defendant did not know there was heroin in the plastic storage container on the window sill, either. All of the other things on the window sill were hers. Even the items in the same drawer as the heroin, such as pearls, were hers. The only thing that did not belong to her was the heroin stashed there (Diaz: 314-15; Exhibits 7-8). Although defendant had used heroin in the past, she did not know how many glassines were in a “bundle.” She did tell Williams-Murphy that the police had discovered three “bundles” in her bedroom. But she did not know what a bundle was. She did not remember explaining to Williams-Murphy that a “bundle” contained ten packages (Diaz: 316-17). The People’s Rebuttal Case When Williams-Murphy asked defendant during their interview what the police recovered from the apartment, defendant responded, “three bundles.” And when Williams-Murphy asked what a “bundle” was, defendant responded that “each bundle contained ten bags” (Williams-Murphy: 328). -15- POINT AMPLE EVIDENCE SUPPORTED DEFENDANT’S CONVICTIONS (Answering Defendant’s Brief). After hearing all of the evidence, the jury convicted defendant of five misdemeanors: one count of Criminal Possession of a Controlled Substance in the Seventh Degree and four counts of Unlawfully Dealing with a Child in the First Degree. On appeal to this Court, defendant contends that the evidence was legally insufficient to support any of these convictions. But the trial evidence easily proved that defendant possessed the heroin that was in her bedroom. And defendant’s arguments that she could not be convicted of unlawfully dealing with a child are based on her strained interpretation of that statute – an interpretation supported solely by defendant’s wishful thinking. An appellate court reviewing whether trial evidence was legally sufficient to support a guilty verdict must view the evidence in the light most favorable to the People, giving the People the benefit of every reasonable inference that can be drawn. People v. Delamota, 18 N.Y.3d 107 (2011); People v. Danielson, 9 N.Y.3d 342, 349 (2007). Reversal on appeal is warranted only if there is no “valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt.” Danielson, 9 N.Y.3d at 349, citing People v. Acosta, 80 N.Y.2d 665, 672 (1993); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). -16- Criminal Possession of a Controlled Substance Defendant first contends that the evidence was insufficient to establish that she possessed the heroin in her bedroom. The People had to establish only two elements for the jurors to find defendant guilty of this misdemeanor possession charge: that defendant possessed heroin, and that she did so knowingly and unlawfully (Charge: 425; see P.L. § 220.03). Of course, to establish defendant’s possession of the drugs, the People were not required to prove that she had actual, physical possession of them, or that she had even touched them at any point. Rather, as the judge explained to the jury (Charge: 419), a person can possess something constructively, by exercising dominion and control over it. And a person has dominion and control over tangible property if she exercises a level of control over the area in which it is found. See P.L. § 10.00(8); People v. Manini, 79 N.Y.2d 561, 573 (1992) (defendant constructively possesses contraband by exerting “a sufficient level of control over the area in which the contraband is found”); People v. Torres, 68 N.Y.2d 677 (1986). Defendant’s arguments notwithstanding, the trial proof left no doubt that defendant constructively possessed the contraband here. Indeed, the inference that defendant exerted dominion and control over the apartment, and her bedroom in particular, was the only rational one to be drawn. First of all, defendant was present in the apartment at the time the police found the heroin there. That alone was powerful evidence that she possessed it. Moreover, -17- she was the apartment leaseholder. That fact, too, was highly compelling on the issue of dominion and control. See Torres, 68 N.Y.2d at 679. And defendant had not just moved into the apartment recently; she had been leasing the apartment, as well as living there, for many years, and the Con Edison account bore her name. Moreover, while defendant strained at trial and now on appeal to distance herself from the contraband recovered during the execution of the search warrant, it was, in fact, found in her own bedroom, some in plain view and all in places where defendant had every reason to have seen it. The numerous glassines of heroin, for example, were not hidden in a box under the floorboards. Many were sitting in plain view in a cup atop defendant’s dresser, right next to her bed. The rest were found inside a storage container that she kept on her windowsill. While defendant acknowledges that the room where the narcotics were found was “usually” her bedroom and housed “some” of her “belongings,” she protests that there was no evidence proving she occupied her bedroom on the night of the warrant execution (Defendant’s Brief: 45). It is worth noting that there is no requirement that a defendant be present in a room that belongs to her to have dominion and control over its contents. See, e.g., Torres, 68 N.Y.2d at 679. Given the evidence about where the glassines of heroin were found, the jury would have been more than justified in drawing the inference that defendant possessed them even if she had not been in the room at the time the police confiscated them. -18- But the jurors did not have to rely on that inference here because the evidence showed that defendant was, in fact, in her bedroom with the heroin at the time the search warrant was executed. The jurors had ample basis upon which to conclude that defendant and Rivera were – despite their self-serving testimony to the contrary – living in the apartment as a couple, sharing the bedroom that contained the narcotics and paraphernalia. Indeed, as the prosecutor argued to the jurors (Summation: 397), that was the logical inference to draw from the fact that they were both there in the early morning hours when the police team woke them, they both listed that address on their driver’s licenses, they both received mail at the apartment, and they both gave that address to the detectives when asked where they lived.2 In any event, regardless of whether Rivera lived there with her, defendant testified that the room where the heroin was stored was her bedroom, where she regularly slept. That alone was a sufficient basis for the jurors to infer that she had been sleeping there on the night of the search warrant execution; they were entitled to reject her contrary claims as self-serving and incredible. But they had much more: defendant herself admitted on the witness stand that she had told Williams-Murphy, the child protective specialist from the New York City Children’s Services agency, that she had slept in her own bed on the night of the 2 Rivera could not even keep the lie that he lived elsewhere straight long enough to be sworn in as a witness: at trial, when the court officer asked him his county of residence, Rivera gave the address of the apartment on East 119th Street and then interrupted his lawyer’s examination of him to try to change his answer (Rivera: 270). -19- search warrant execution and that she had woken up – in her own bedroom – when the police entered the front door (Diaz: 309). Moreover, the detectives saw defendant at the threshold of that bedroom when they entered to execute the search warrant. Defendant tries to hide this fact, recounting that defendant was “in the hallway just outside” the bedroom when the detectives encountered her (Defendant’s Brief: 6, 45). But as Detective Mortensen made quite clear to the jurors, defendant was standing in her pajamas in the doorway of her bedroom – “halfway in the room and halfway out” (Mortensen: 40, 57, 86, 88- 89, 114, 117, 121-22). The natural inference from that evidence, of course, is that she was in the process of coming out of the room into the hallway upon hearing the officers’ forced entry; indeed, no other explanation was proffered. Moreover, the People’s evidence as well as defendant’s own testimony made plain that there were more than just a few of her things being “housed” in that bedroom. Her belongings were all over the room, including around the heroin that was recovered. For example, the items all around the storage container on the windowsill that contained the 20 glassines of heroin were hers: the textbooks to the right of it, the sewing machine on top of it, and the files and paperwork to the left of it. According to defendant, everything inside the drawer that contained the heroin was hers – everything except the two bundles of heroin glassines (Diaz: 314-15; Exhibits 7 & 8). Many of the items in the dresser drawer where the paraphernalia was hidden were hers, too: mail, her son’s medical insurance card, and her ink pad (Diaz: -20- 317-18; Exhibit 11). In short, the evidence clearly established that it was her bedroom, she was sleeping there that night, and she obviously had dominion and control over the items inside of it. The only evidence supporting a different inference came from defendant and Rivera. According to defendant, she slept in her children’s bedroom that night, and the drugs belonged to Rivera, who coincidentally had surreptitiously brought them into her apartment on the very night the police were coming to execute a search warrant there, and who cunningly concealed them from defendant by scattering them around her bedroom among her things. But that implausible story was supported by nothing other than testimony that defendant and Rivera provided. The jurors were therefore permitted simply to reject all of it out of hand, since it had been supplied solely by interested witnesses. For legal sufficiency purposes, the extent to which this evidence provided a competing inference, it was essentially of no consequence at all. The critical question is whether the inference chosen by the jurors was itself a rational one under the facts of the case. Certainly, the inference drawn met that standard. Thus, the evidence plainly established defendant’s dominion and control over the heroin. For the same reasons, the jury was also correct to find that defendant’s possession of those narcotics was knowing. Once established, possession usually “suffices to permit the inference that the possessor knows what [s]he possesses,” “especially” when the property is found “on [the defendant’s] premises.” People v. Reisman, 29 N.Y.2d 278, 285 (1971). Here, defendant’s knowledge was supported -21- not only by that permissible inference, but also by an abundance of evidence. The numerous glassines of heroin were spread all over defendant’s bedroom, at the time the search warrant was executed, with many of them in plain view and others mingled among her possessions. That provided ample basis for the jurors to conclude that defendant knew they were there, especially since, as discussed, the evidence showed that she was sleeping in that room at the time the officers entered the apartment. Even under defendant’s own version of events, she spent the better part of the evening watching television in that room containing the heroin. Thus, there was every reason to conclude that she not only possessed the heroin, but that she did so knowingly and unlawfully. In sum, the evidence unquestionably supported the jury’s determination that defendant was guilty of Criminal Possession of a Controlled Substance. Unlawfully Dealing with a Child Defendant next challenges her convictions for unlawfully dealing with children. As the judge explained to the jurors, the four charged counts of this crime were identical, except that each related to one of the four children who were in the apartment (Charge: 439-40). In order for the jury to convict defendant of this crime, the People had to prove beyond a reasonable doubt that she: knowingly permit[ted] a child less than eighteen years old to enter or remain in or upon a place, premises or establishment where . . . activity involving controlled substances as defined by article two hundred twenty of [the Penal Law] . . . is maintained or conducted, and [s]he -22- kn[e]w[ ] or ha[d] reason to know that such activity [wa]s being maintained or conducted P.L. § 260.20(1). The evidence was more than ample to establish defendant’s guilt of that crime. No one disputed that all four children were under the age of 18 or that they were all present in the apartment, as the detectives testified. Neither could there be any question that crimes “involving controlled substances as defined by article 220” were taking place on the premises. After all, the jury found defendant herself guilty of a crime defined by that article: seventh-degree possession of a controlled substance (P.L. § 220.03). And Rivera was convicted of five different Article 220 crimes for his conduct in the apartment: two counts of seventh-degree possession, one for possessing heroin and one for possessing Suboxone (P.L. § 220.03); and three counts of second-degree criminal use of drug paraphernalia (P.L. § 220.50). Since, as the jury concluded, both Rivera and defendant were engaged in “activity involving controlled substances as defined in article 220,” while the children were on the premises, defendant was guilty of unlawfully dealing with a child. Defendant’s claims about the sufficiency of the evidence ignore the plain language of the statute. First, defendant contends that the evidence does not support the jury’s conclusion that defendant possessed the heroin or even knew the heroin and paraphernalia were in her bedroom and that, without this “necessary predicate” -23- (Defendant’s Brief: 41), she could not be convicted of unlawfully dealing with a child (Defendant’s Brief: 41-49). But that argument must fail. First, as argued above, the evidence amply supported the jury’s conclusion that defendant possessed the narcotics and knew they were there. But whether or not defendant actually knew the heroin was in her bedroom is irrelevant: defendant did not have to possess the drugs herself or know for sure they were present in order to commit the crime of unlawful dealing. In 1992, the Legislature amended P.L. § 260.20(1) to specify that a person was guilty even if she had only “reason to know” that illegal drug activity was being conducted on the premises. See L. 1992, c. 362; William C. Donnino, Practice Commentaries to Penal Law § 260.20, McKinney’s Cons. Laws of N.Y., Book 39. Thus, even if the evidence had not established defendant’s knowing possession of the narcotics, all that was required was that she had “reason to know” that the drug crimes were taking place around her children. The trial evidence certainly gave the jurors ample basis to come to that conclusion. After all, as already noted, bundled glassines of narcotics and the related paraphernalia were in her apartment, spread around her bedroom, where, even according to defendant’s own testimony, she spent a good portion of the evening. The paraphernalia was in defendant’s dresser drawers and storage containers, mixed in among her jewelry, mail, and other personal possessions. Some of the glassines were sitting in plain view on top of her dresser. Indeed, the jurors heard evidence that defendant's daugh had seen narcotics in the apartment. Of course, there was no evidence that-- had complained to her mother about the drugs, s~s awareness of the drugs does not alone establish defendant's guilt. But if even an innocent child was aware of the presence of drugs, her mother certainly should have known about them. As the prosecutor argued to the jury (Summation: 393-94, 400), it made no sense to believe that-had learned the drugs were there, but that defendant remained blissfully unaware of them. And of course, defendant's testimony that she knew Rivera was an addict supported, rather than refuted, the notion that defendant should have known about the narcotics activity taking place around her children. In short, the evidence proved that defendant knowingly possessed the heroin in her bedroom. It is beyond question that it was sufficient to support the lesser inference that she had reason to know it was there. Defendant argues that even if she had reason to know the heroin was present- indeed, even if she possessed it herself- the evidence was still insufficient to support her unlawful dealing convictions because possession of drugs does not constitute "activity involving controlled substances as defined by article 220." On defendant's view, the Legislature meant to exclude the possessory crimes defined by that article, such as P.L. § 220.03. That intent to excise those crimes, defendant urges, is dear from the Legislature's use of the words "maintained" and "conducted." As defendant sees it, "activity'' that is "maintained" or "conducted'' must be "conduct of an -24- -25- ongoing nature with a commercial bent” (Defendant’s Brief: 31). Since defendant was convicted of mere possession, she does not think she can be guilty of first-degree unlawfully dealing with a child. This Court does not need to reach this question of statutory construction, because the evidence was sufficient to establish defendant’s guilt even under defendant’s interpretation. After all, defendant’s case did not involve mere possession of a controlled substance; there was also paraphernalia used in the trafficking of controlled substances in the apartment. The jury convicted Rivera of possessing lactose – a substance used to a dilute narcotics – under circumstances suggesting that it was going to be used “for the purpose of unlawfully mixing, compounding or otherwise preparing any narcotic drug” (Charge: 433; see P.L. § 220.50[2]). The jurors also convicted Rivera of possessing “glassine envelopes suitable for the packaging of individual quantities of narcotic drugs or stimulants” and a scale “designed for the purpose of weighing or measuring controlled substances” under circumstances demonstrating that he either intended to use them “for the purpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug or stimulant” or that he knew someone else intended to do so (Charge: 435, 437; see P.L. § 220.50[2]). Clearly these activities, which relate to narcotics trafficking, are proscribed by Article 220 of the Penal Law. And they are plainly commercial in nature. Thus, even under defendant’s view of the unlawfully dealing statute, they would be “activities” that were being “maintained or conducted” in defendant’s apartment. It is irrelevant -26- that the jurors did not convict defendant herself of possessing the trafficking paraphernalia. A conviction for unlawfully dealing with a child does not require proof that the defendant herself engaged in any unlawful activity; rather she must knowingly permit children on the premises where she has reason to know such activity is taking place. For the reasons argued above, and particularly when viewed in the light most favorable to the People, the evidence was unquestionably sufficient to support the inference that defendant had reason to know the heroin and related paraphernalia were in her bedroom. The evidence was therefore sufficient to establish defendant’s guilt, even under defendant’s interpretation of the statute. In any event, defendant’s proposed interpretation of the statute is no more than wishful thinking on her part. As defendant points out (Defendant’s Brief: 29, 32), when a court construes a statute, the primary goal is to ascertain and give effect to the intention of the Legislature. Of course, the clearest indicator of legislative intent is the language of the statute itself. See McKinney’s statutes § 92. There is nothing about the words of this statute defendant points to – “activity,” “maintained,” or “conducted” – that suggest that the Legislature meant to refer exclusively to ongoing, commercial conduct. Defendant offers up some dictionary definitions of the words, but even they do not support her position. As defendant concedes (Defendant’s Brief: 30), it is only the secondary definition of “activity” in Black’s Law Dictionary that includes “commercial activity.” The very fact that one has to add the word “commercial” before “activity” for it to take on that meaning demonstrates that not -27- all activity is commercial in nature. As defendant is forced to concede in a footnote (Defendant’s Brief: 30, n.9), Oxford Dictionaries defines “activity” as “a thing that a person . . . does.” Clearly, that definition does not support the notion that all “activity” must be commercial, and that possessory crimes are excluded from the ambit of Article 220 “activity” contemplated by the unlawful dealing statute. Nor does the requirement that the “activity” be “maintained or conducted” add this extra element of commerce to the statute. While “maintained” could be understood to suggest ongoing activity,3 “conducted” – which is used in the disjunctive – does not have that meaning. And neither word requires that the activity be commercial. Even according to the definition defendant offers, to “conduct” something simply means to carry it out (Defendant’s Brief: 31, citing Oxford Dictionaries). Defendant posits that the Legislature could simply have worded the statute to proscribe “knowingly permitting a child to enter or remain in a place where a violation of an Article 220 or 221 offense has occurred or is occurring” if it did not mean to limit its scope to commercial activity (Defendant’s Brief: 30). But the words the Legislature chose to use were practically synonymous with that; they proscribe knowingly permitting a child to enter or remain in a place where the defendant had 3 See People v. Fiedler, 31 N.Y.2d 176, 180 (1972) (finding that use of the word “maintains” in an unrelated statute “excludes the notion that an isolated misuse is sufficient to stigmatize the premises”). -28- reason to know that crimes defined by the referenced articles of the Penal Law were being “conducted”; i.e., “carried out.” Those straightforward terms should be given their clear meanings. Indeed, applying defendant’s own logic, this Court should find that if the Legislature had wanted to limit the statute’s scope to commercial activity, it would simply have said so.4 Instead, it specifically referred to a large number of carefully defined crimes, only some of which are commercial in nature. The statute prohibits permitting children on premises not only where there is activity involving controlled substances as defined by Article 220, or marijuana as defined by Article 221, but also “where sexual activity as defined by article 130, 230 or 263 of this chapter . . . is maintained or conducted[.]” P.L. § 260.20(1). Obviously, the Legislature did not mean to refer solely to sexual activity of a commercial nature; Article 130 of the Penal Law does not include a single crime that could be considered commercial. Tellingly, defendant cannot provide any case supporting her interpretation of the statute. On the contrary, what implicit interpretations there are have never suggested that the “activity” in question must be commercial or ongoing. For example, in People v. Edwards, 38 A.D.3d 1133 (3rd Dept. 2007), while the question 4 Indeed, the Oregon statute defendant cites provides a helpful contrast to the one at issue here. There, the legislature clearly stated that the crime was allowing the child to stay in a place where drugs were being “criminally delivered or manufactured for consideration or profit” (Defendant’s Brief: 37, citing Or. Rev. Stat. § 163.547). That is the sort of language the New York Legislature might have used if it had wanted to limit this statute’s scope to commercial activity. -29- of whether the statute requires commercial activity was not addressed, the Appellate Division found the evidence sufficient to establish the defendant’s guilt of unlawfully dealing with a child in the first degree where the defendant smoked marijuana with a 14-year-old girl and then had a sexual encounter with her. There was no indication that the activity was either ongoing or commercial. Likewise, in the practice commentary for this statute, the Honorable William C. Donnino noted that, [i]nstead of referring to the prohibited activity as ‘illicit sexual activity or illegal narcotics activity,’ as the former statute had, the 1992 amendments defined the prohibited activity by a cross-reference to the statutes defining such prohibited activity. Donnino, Practice Commentaries to Penal Law § 260.20, McKinney’s Cons. Laws of N.Y., Book 39. In other words, as amended, the statute defines the “activity” that is prohibited by referring to the crimes in the named articles – all of them, not merely those that have a commercial bent. Moreover, while defendant is correct that there is no Criminal Jury Instruction defining this crime (Defendant’s Brief: 30), there was a suggested jury charge for the statute as it existed before the 1992 amendments. Like the current statute, the pre- amendment statute proscribed permitting a child into a place where illicit sexual or narcotics “activity” were “maintained or conducted.” L. 1965, c. 1030. Despite the use of those words, the suggested jury charge did not mention anything about -30- requiring proof that the activity was ongoing or commercial. Rather, the suggested charge explained, it is illegal to allow a child of less than the age of eighteen to enter a brothel or any other place where illegal sexual acts are practiced or where narcotics are sold or ingested in any form or manner. Goodman and Leventhal, Charges to the Jury and Request to Charge in a Criminal Case, § 17:12 (emphasis added). In sum, there is nothing about the plain text of the statute that suggests that the Legislature intended for it to apply only to crimes that are ongoing or commercial in nature. On the contrary, the statute specifies exactly which “activities” are prohibited by referring to the very statutes that define them, and many of them are not commercial at all. The statute’s history supports this straightforward interpretation. The predecessor to this statute was P.L. § 484(2). See Commission Staff Notes; see also Donnino, Practice Commentaries to Penal Law § 260.20, McKinney’s Cons. Laws of N.Y., Book 39. That statute made it a crime to “admit[ ] to or allow [ ] to remain . . . in any place where opium or any preparation thereof is smoked, any child actually or apparently under the age of sixteen years[.]” See Gilbert, Criminal Law and Practice of New York, Code of Criminal Procedure Penal Law, 47th Edition, 1964. Thus, the original purpose of the statute at hand was to prevent children from being around those who used illicit drugs, not necessarily those who sold them. -31- In 1965, the language of that subsection was broadened to make it illegal for a person to allow a child “to enter or remain in a place where illicit sexual activity or illegal narcotics activity is maintained or conducted[.]” L. 1965, c. 1030. Nothing about that change suggested that the Legislature meant to limit the statute’s scope to include only crimes of a commercial nature. Indeed, use of the non-specific word “activity” demonstrates the Legislature’s intention to include all manner of illicit, narcotics-related behavior. As noted, the law was again amended in 1992. The Legislature omitted the general reference to “illegal narcotics activity” and instead referred to narcotics-related crimes “as defined by article two hundred twenty of this chapter.” L. 1992, c. 362. The amendment was intended to “clarif[y] the definitions of those offenses punishable by this section” and thereby “make it easier to prosecute those individuals unlawfully dealing with a child.” Letter from Assemblyman Edward Griffith to Governor Mario Cuomo, Legislative History Files, L. 1992, c. 362; see also Donnino, Practice Commentaries to Penal Law § 260.20, McKinney’s Cons. Laws of N.Y., Book 39 (the 1992 amendment more clearly “defined the prohibited activity by a cross-reference to the statutes defining such prohibited activity”). That reference to Article 220 did not specify any particular crimes or any category of crimes. And, of course, Article 220 includes crimes of simple possession as well as more commercial conduct. See, e.g., P.L. § 220.03. In short, nothing about the text of the statute or its history remotely suggest that its scope is limited to commercial or recurring activity. -32- In her discussion of the legislative history, defendant conflates the two subsections of P.L. § 260.20 (Defendant’s Brief: 32-37). Former P.L. § 484(3) rendered a person guilty of unlawfully dealing with a child if he “Sells or gives away, or causes or permits or procures to be sold or given away to any child . . . any alcoholic beverages.” That statute became the basis for what is now P.L. § 260.20(2), which deals with giving or selling alcohol to minors. It was a different subsection of that statute, P.L. § 484(2), that was the predecessor to the statute at issue here. See Commission Staff Notes; see also Donnino, Practice Commentaries to Penal Law § 260.20, McKinney’s Cons. Laws of N.Y., Book 39. Thus, defendant’s discussion of People v. Arriaga, 45 Misc. 2d 399 (City Ct. Syracuse 1965), for example, is irrelevant (Defendant’s Brief: 34-35).5 Defendant contends that the statute could not possibly mean what it says because that would “criminalize a huge sweeping swath of behavior” that defendant believes is “within generally accepted social norms” (Defendant’s Brief: 31). But it is not hard to believe that the Legislature could have determined that what defendant did in this case was criminal. Defendant’s children were living in an apartment where dozens of bundled glassines of heroin and trafficking paraphernalia were scattered among their mother’s things, in places where they could easily access them. At least 5 Also irrelevant are defendant’s discussions interpreting sections of the Model Penal Code and the statutes of other states (Defendant’s Brief: 35-37). -33- one of the children actually saw narcotics in the apartment herself. Defendant’s contention that these children were “well cared-for” (Defendant’s Brief: 27) or that the home she provided was “healthy” and “safe” (Defendant’s Brief: 36) are opinions not everyone would agree with. Defendant attempts to bolster her case by presenting hypothetical scenarios at the extreme edges of the statute’s reach. She argues that construing the statute the way the trial court and the Appellate Division did has the “unfair” and “unreasonable” effect of criminalizing these scenarios (Defendant’s Brief: 31-32). If a case resembling one of these scenarios ever made its way to this Court, perhaps that argument would carry more weight. But these imagined situations bear no resemblance to the case at hand; it is not at all hard to imagine the Legislature wanting to discourage and punish conduct like defendant’s. In fact, it is not unreasonable to think the Legislature would want to proscribe even the conduct defendant describes in her hypothetical cases. As defendant points out, possession of marijuana itself is “a mere non-criminal violation” (Defendant’s Brief: 28). But the Legislature still takes conduct involving marijuana seriously. Its sale is still a misdemeanor. P.L. § 221.40. And even simple possession can result in a term of imprisonment if the possessor is a repeat offender. P.L. § 221.05. Thus, its presence around children might well have been intended to run afoul of a misdemeanor offense aimed at protecting the well-being of children. -34- Moreover, it is a misdemeanor for a person to possess marijuana in a manner where others are likely to see it – in a public place and open to public view. P.L. § 221.10(1). Given that the Legislature has seen fit to criminalize the “mere possession” of marijuana in a place where strangers might see it, it is not at all hard to believe that it would also want to criminalize the possession of marijuana in a place where children might see it or have access to it. In short, defendant’s opinion that the situations she describes involve conduct that should not be criminalized is a matter to take up with the Legislature. As a matter of statutory construction, this Court must do its best to construe the statute at hand “according to the fair import of [its] terms” and try to “effect the objects of the law.” P.L. § 5.00. Here, it is quite clear that when the Legislature specifically referred to “activity involving controlled substances as defined by article 220 of this chapter[,]” it meant to include defendant’s conduct. * * * In sum, the evidence more than supported the jury’s verdicts in this case. CONCLUSION The order of the Appellate Division should be affirmed. VINCENT RIVELLESE KAREN SCHLOSSBERG Assistant District Attorneys Of Counsel March 27,2014 Respectfully submitted, CYRUS R VANCE,JR District Attorney NewYorkC,~-- Assistant District Attorney -35-