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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 8
The People &c.,
Respondent,
v.
Sandra Diaz,
Appellant.
Katharine Skolnick, for appellant.
Karen Schlossberg, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Early in the morning of April 8, 2009, police officers
executed a search warrant at an apartment in a building located
in Manhattan. The officers had been investigating this address
for potential illegal drug activity for almost a year. Defendant
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Sandra Diaz and her three children, her 10-year-old niece and
Matias Rivera, her children's father, were present in the
apartment. When the police entered, defendant was standing in
her "bedroom attire" in the doorway of a bedroom. Inside this
bedroom, in several different locations, the officers discovered
approximately 30 bundled glassine envelopes of what was later
identified as heroin; 26 glassine envelopes containing what
subsequently tested positive for heroin residue; a bottle
containing 35 pills of what was later determined to be Suboxone,
a maintenance drug used to treat heroin addiction; and numerous
items of drug paraphernalia. The dresser drawer where some of
these items were found also contained defendant's ink pad, her
mail and her son's health insurance card. No contraband was
discovered elsewhere in the apartment, where both Rivera and
defendant told the police they resided; defendant's name was on
the lease and the Con Ed account.
Defendant and Rivera were jointly charged with one
count each of third-degree (heroin) and fifth-degree (Suboxone)
criminal drug possession with intent to sell (Penal Law § 220.16
[1]; 220.06 [1]); three counts of criminally using drug
paraphernalia in the second degree for possessing lactose (a
narcotic dilutant), empty glassine envelopes and a scale, under
circumstances evincing knowledge that some person intends to use
those items for the purpose of manufacturing, packaging or
dispensing a narcotic drug for sale (id. § 220.50 [1]-[3]); and
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four counts of unlawfully dealing with a child in the first
degree (id. § 260.20 [1]). A person is guilty of the latter
crime when he
"knowingly permits a child less than [18]
years old to enter or remain in or upon a
place, premises or establishment where . . .
activity involving controlled substances as
defined by article [220] of [the Penal Law] .
. . is maintained or conducted, and he knows
or has reason to know that such activity is
being maintained or conducted."
Defendant and Rivera proceeded to a joint jury trial,
where defendant testified that she understood why she was
arrested -- the police had "found the stuff" in her bedroom. She
claimed, however, to have been unaware of the presence of the
narcotics and drug paraphernalia. According to Rivera, who also
testified at trial, the narcotics belonged to him. At the
trial's conclusion, the jury acquitted defendant of the criminal
drug possession with intent to sell and paraphernalia crimes, but
convicted her of the lesser-included offense of seventh-degree
criminal drug possession (heroin) (Penal Law § 220.03) and the
four counts of unlawfully dealing with a child. As for Rivera,
the jury also acquitted him of possession with intent to sell,
but convicted him of seventh-degree criminal drug possession
(both the heroin and the Suboxone), the three drug paraphernalia
counts and the four counts of unlawfully dealing with a child.
Upon defendant's appeal, the Appellate Division
affirmed, holding that the trial evidence "support[ed] the
conclusion that defendant exercised dominion and control, at
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least jointly with the codefendant, over the contraband"; and
"also established the elements of
first-degree unlawfully dealing with a child
(see Penal Law § 260.20 [1]), including the
element of 'activity involving controlled
substances.' Defendant knew or should have
known that a large amount of heroin and drug
paraphernalia were in her apartment, where
four children under the age of 18 lived" (100
AD3d 446, 447 [1st Dept 2012]).
A Judge of this Court granted defendant leave to appeal (21 NY3d
1015 [2013]), and we now affirm.
First, the police discovered bundled glassines of
heroin and drug paraphernalia in defendant's apartment, located
exclusively in and spread throughout her bedroom. Some of this
contraband was in plain view; some was in a dresser drawer, mixed
in with her personal belongings. Defendant was the apartment's
leaseholder and had been living there for many years. The jury
could readily infer, from this and other proof presented, that
defendant exercised dominion and control over the contraband
found in her apartment "by a sufficient level of control over the
area in which the contraband [wa]s found" (People v Manini, 79
NY2d 561, 573 [1992]). Additionally, there was sufficient
evidence that defendant's possession of the heroin was knowing,
as "[g]enerally, possession suffices to permit the inference that
the possessor knows what he possesses, especially, but not
exclusively, if it is . . . on his premises" (People v Reisman,
29 NY2d 278, 285 [1971]).
Next, defendant argues that because she was only
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convicted of possessing illegal drugs, the evidence was
insufficient to convict her of unlawfully dealing with a child,
as that statute requires the alleged offender to know or have
reason to know about ongoing commercial drug-related activity in
a place where a child is present. Here, we need not and do not
decide whether Penal Law § 260.20 (1) excludes possessory crimes
because there is sufficient proof to establish defendant's guilt
even under her narrower interpretation of the statute.
The jury convicted Rivera of three counts of second-
degree criminal use of drug paraphernalia. Such activity,
related to drug trafficking and taking place in defendant's
apartment, is plainly commercial and ongoing. Further, there was
sufficient evidence for the jury to conclude that Rivera was
residing with defendant and that they jointly exercised dominion
and control over the area in which the contraband was found.
While defendant emphasizes her acquittal of criminally possessing
paraphernalia, the People were only required to establish that
she knowingly permitted children to remain on premises where she
had every reason to know that this illegal drug activity was
taking place (see William C. Donnino, Practice Commentary,
McKinney's Cons Laws of NY, Book 39, Penal Law § 260.20).
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Order affirmed, in a memorandum. Chief Judge Lippman and Judges
Read, Pigott, Rivera and Abdus-Salaam concur. Judges Stein and
Fahey took no part.
Decided February 12, 2015
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