People v. Chandler

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Alfano, J.), rendered May 27, 1983, convicting him of criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Judgment modified, on the law, by reversing the conviction of criminal possession of a weapon in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment. As so modified, judgment affirmed.

At approximately 2:20 p.m., on October 6, 1981, several police officers executed a search warrant for the premises at 797 Franklin Avenue, Brooklyn. The premises bore an exterior sign identifying it as a pool hall. The exterior door, which had a buzzer, was locked, and the police, after announcing their presence, had to break it down in order to gain entry.

Immediately inside the exterior door was a room with a pool table. There were no persons present. A wood and plexiglass partition extended across the entire width of this room, separating it from the rear of the premises. The partition was covered with posters, and one could not see through it to the rear of the premises, nor could one look over it. The partition door which separated the front room from the rear of the premises was also locked, and there was a slit-like opening in the plexiglass similar to that of a bank teller’s or ticket booth window.

When the police broke down the partition door, they saw the defendant and several others fleeing out the back door. The officers gave chase, and apprehended the defendant and the others on the rooftop of an adjoining building. A number of waxpaper packets containing a white powder were recovered from the area of the roof where the defendant and the others had been made to lie down when arrested.

The officers then brought the defendant and the others back to the rear of the premises at 797 Franklin Avenue, and there discovered a number of items, all of which were in plain view. Among other things, the police recovered $772 on a counter behind the slit-like opening in the plexiglass, a large number of wax paper packets and glassine envelopes containing a white substance later determined to be cocaine, as well as mannite (a mixing agent) and strainers. Additionally, on one of the tables where many packets of cocaine were found, the police also recovered a loaded and operable .38 caliber revolver. The defendant was thereafter convicted of criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the third degree.

As the defendant was never shown to have been in actual possession of either the gun or the contraband, his convictions can be sustained only if constructive possession was established as to these items. With respect to the charge of criminal possession of a controlled substance, we find that the evidence amply supports the defendant’s conviction. When narcotics are found in open view in a room other than a public place, every person in close proximity to the narcotics at the time of their discovery is presumed by statute to have knowingly possessed them (Penal Law § 220.25 [2]). This presumption is rebuttable, but the jury is permitted, upon all of the evidence, to draw the logical inference of criminal possession from a defendant’s presence at the place of discovery (People v Daniels, 37 NY2d 624, 630-631). Contrary to the defendant’s contention here, we find that the premises in question clearly were not a "public place”, and that the statutory presumption, which was not rebutted, was applicable. Under the circumstances, we cannot say that the jury’s conclusion was against the weight of the evidence.

However, the statutory presumption of possession under Penal Law § 220.25 (2) is inapplicable to the weapon possession charge. Nor do the statutory presumptions contained in Penal Law § 265.15 apply to the facts at bar. As there is no evidence on the record tending to establish that the defendant had actual or constructive possession of the gun, his conviction on that count must be reversed and that count of the indictment dismissed.

We have considered the defendant’s remaining contentions and find them to be without merit. Eiber, J. P., Kunzeman, Kooper and Spatt, JJ., concur.