People v Connell

[*1] People v Connell 2005 NY Slip Op 51363(U) [9 Misc 3d 1101(A)] Decided on August 29, 2005 Supreme Court, Queens County McGuire, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 29, 2005
Supreme Court, Queens County

The People of the State of New York,

against

Levi Connell and Keiran Smith, Defendants.



1165/2005

James M. McGuire, J.

The issue presented here is whether the absence of an instruction to the grand jury on the defense of temporary and lawful possession impaired the integrity of the grand jury proceeding so as to require dismissal of the indictment pursuant to CPL Section 210.35(5). I conclude the indictment should be dismissed, despite the reservations I have about whether the dismissal ultimately will prove to be pointless.

Police Officer Bourgignon was on routine patrol when he received a radio run; with his partner he went to a particular location and observed a parked white BMW. The defendants were the sole occupants of the BMW. Both were arrested; a loaded handgun was recovered from the trunk and a small quantity of cocaine was recovered from defendant Smith's jacket when it was searched at the police station.

Defendant Smith appeared before the grand jury and testified that on the day in question he was asked by defendant Connell to clean out the basement in a house Connell owned. When he arrived with Connell, four people were in the basement who "wasn't [sic] supposed to be there." Connell called the police but the four persons left before the police arrived. The police left after Connell "showed the paperwork for the house" and explained he owned it. The two resumed cleaning out the basement. When he flipped over a mattress, Smith discovered a gun and a pack of cigarettes that contained cocaine. Smith took the gun to the BMW and put it in the trunk; he put the cigarette pack in his jacket pocket. He waited there for Connell, who was dealing with possible tenants. When Connell arrived, before Smith could tell him anything, the police came, searched the car and found the gun. Smith told the police about the cocaine in his jacket pocket and the two men were arrested.

After making the foregoing statement, Smith was asked why he did not call the police when he found the gun and drugs. He answered as follows: We were going to call the cops. Before I had a chance [Connell] was dealing with clients before I had the chance to come to the car that's when the cops came. The cops came [and] told me to get out of the car. They searched the car.

Asked why he would touch the gun, Smith testified he was cleaning out the house because Connell was showing it, and he "just put it in the car for safekeeping until we called the cops because we had called the cops before, you know, was coming to get the drugs."

Smith further testified in response to the prosecutor's question that Connell was the one who had earlier called the police, using a cell phone he had. The car, a 2005 BMW, was Connell's and he, Smith, was driving it for Connell because Connell's license had been [*2]suspended.

The People's first argument seems to be that a charge on the defense of temporary and innocent possession was not appropriate because Smith could have left the gun and drugs in situ while the police were called. This is not persuasive, for it would leave little or no role for the defense to play in the law. In most if not all conceivable situations, other than ones involving the necessity of disarming an assailant, a weapon can be left in situ. The People's position, moreover, is at odds with People v LaPella, 272 NY 81 (1936), where the defendant came upon a firearm in a public restroom and kept it on his person before surrendering it to the police. The Court held that the defense should have been charged, LaPella, 272 NY at 82-83, and that holding is not consistent with the People's position. And this common-law defense would not play any role in situations involving the need to disarm an assailant, because a statutory defense of justification is available in such situations. Penal Law Section 35.05(2).

In addition, "the underlying purpose of the charge [on temporary and innocent possession] is to foster a civic duty on the part of citizens to surrender dangerous weapons to the police ...." People v Williams, 50 NY2d 1043, 1045 (1980). That purpose would be undercut rather than fostered by an inflexible rule requiring that citizens who do intend to surrender dangerous weapons make perfect decisions at every step in the course of fulfilling that civic duty.

The People suggest it is relevant that Smith failed to mention his and Connell's intent to call the police during his statement to the grand jury and did not express it until he was asked about the subject by the prosecutor. For two reasons, that suggestion is not persuasive. First, and contrary to the People's position, the evidence must be viewed in the light most favorable to the defendant when considering whether such a charge should be given to a petit jury. Williams, 50 NY2d at 1044-1045. I am not aware of any reason, and the People do not provide one, why the evidence should be viewed for this purpose in the light most favorable to the People in the context of a grand jury proceeding. The People's reliance on People v Jennings, 69 NY2d 103 (1986), is misplaced, because the issue in Jennings was the sufficiency of the evidence before the grand jury. Second, Smith's failure to mention his avowed intent during his statement could have been the result of mere nervousness. He did avow it, and the only rational reason for him to have testified before the grand jury was to profess it to the grand jurors.

It is inexplicable, however, that Smith's attorney did not request of the prosecutor that the grand jury be instructed on the defense. The People, however, do not urge that this failure would warrant the conclusion that the integrity of the proceedings was not impaired. Presumably, that is because the District Attorney has an independent obligation to instruct the grand jury on the applicable law as the legal advisor to the grand jury. People v Valles, 62 NY2d 36 (1984).[FN1]

The People correctly point out that Smith testified he had not "had the chance to tell [Connell] anything" before the police came, searched the car and found the gun. For this reason, and because the statutory presumption of possession (Penal Law Section 265.15(3)) assertedly applied to Connell, the People argue that under any view of the evidence and the law the charge should not have been given with respect to Connell. [*3]

This, too, is not persuasive. The evidence must be viewed in the light most favorable to Connell, and despite the logical import of the testimony just quoted, Smith unequivocally testified that "[w]e" were going to call the police and that he had put the gun in the car "for safekeeping until we called the cops ...." If the evidence is to be viewed in the light most favorable to Connell, I surely must not ignore this testimony and accept at face value only the apparently contradictory testimony.

Moreover, I note (although it is not necessary to my analysis), that the People's position that the statutory presumption applies to Connell seems at least questionable. Under the statute, the presumption of possession by all occupants of a vehicle from the presence of a firearm anywhere in the vehicle does not apply if the weapon is a pistol or revolver and "one of the occupants, not present under duress, has in his possession a valid license to have and carry concealed the same." If the ground jury were to determine that Smith's possession was lawful, it is not obvious that the presumption would remain applicable to Connell. I need not determine, however, whether the presumption is similarly rendered inapplicable if an occupant lawfully possesses a weapon or pistol for a reason other than licensure.

A charge on temporary and innocent possession of a weapon without more would have resulted at most in the dismissal of the weapon-possession count. Accordingly, it might be argued, although the People do not, that the charge need not have been given because Smith still would have been indicted for the cocaine charge. In other words, it arguably need not have been given as to Smith because although fully exculpatory as to the weapon charge it could not "result in a finding of no criminal liability" at all, Valles, 62 NY2d at 38, and thus is not a defense which has the "potential for eliminating a needless or unfounded prosecution." Id.

I need not resolve this issue, however, for I conclude that an instruction on temporary and innocent possession also should have been given as to the cocaine-possession charge. The parties have not provided me with any precedents discussing the applicability of the defense of temporary and innocent possession to drug-possession charges. Although the People argue that no such charge should have been given here, they do not broadly contend that such a charge should never be given on the ground that the defense applies only to weapon-possession charges.

The tacit concession by the People that the same defense can be applicable to drug-possession charges is understandable. In principle, the same public policy considerations that support recognition of the defense with respect to weapons would seem to apply with equal force to other dangerous articles such as drugs. Even if for some reason the surrender of dangerous drugs to the police is a less acute public policy objective than the surrender of dangerous weapons, their surrender to the police at the very least implicates the same important public policy concerns. In the absence of any authority (let alone controlling authority) to the contrary, and for an additional reason discussed below, I conclude that in this case the defense is applicable to the drug-possession charge. Whether the defense should be held inapplicable in some other case one in which the grand jury is not charged on its applicability to a weapon-possession charge is a matter that need not and should not be decided now.

The People's argument that a charge on the defense should not have been given is two-pronged. Neither prong has a sharp point. First, I cannot consistently view the evidence in the light most favorable to Smith and hold the defense inapplicable because he treated the gun and the cocaine differently. A reasonable grand juror might conclude that he put the cocaine in his jacket because he harbored an intent to use it in some unlawful manner. But that conclusion hardly is inescapable. A reasonable grand juror also could conclude that it was reasonable to place the small cigarette package in his jacket and the heavier, bulkier and more dangerous weapon in the trunk. The manner in which Smith treated the cocaine, in short, was not "utterly at [*4]odds with any claim of innocent possession." Williams, 50 NY2d at 1045.

Second, the People are correct in arguing that Smith "could have flushed [the cocaine] down a toilet even if he could not do the same for a gun." Of course, however, this argument in essence invites me to hold that a charge on the defense was not warranted on the ground that the law should not "foster a civic duty on the part of citizens to surrender dangerous [drugs] to the police." Williams, 50 NY2d at 1045.

If I were to hold the defense inapplicable for this reason to the drugs, citizens who innocently find both weapons and drugs could be in a quandary. Although they could lawfully safeguard the weapon to the end of surrendering it to the police, they presumably would have to leave the drugs in situ or destroy them in some fashion. If fingerprints or DNA evidence on the drug packaging would permit the police to identify the person or persons who criminally possessed both, the destruction of the drugs would be unhelpful to say the least.

Finally there was other evidence before the grand jury; it should not be discussed in light of the statutory provisions governing disclosure by the court and cannot be disclosed without providing the district attorney with an opportunity to be heard. CPL Section 210.30(3). Moreover, it need not be disclosed as it is not necessary to the determination of the issue before me. Because there must be a new presentation to the grand jury, I note that an appropriate limiting instruction should again be issued to the grand jury, but otherwise express no opinion on whether that evidence properly could be elicited in advance of Smith's testimony if he determines anew to exercise his right to testify. On that score, I expressed doubt during oral argument but have no basis for doubting the sincerity of the assurances given by Smith's counsel that he would testify. To the extent my approval is necessary for the People to represent the charges to the grand jury, it is hereby given.

For the reasons stated above, the indictment is dismissed as to both defendants.

This constitutes the decision and order of the Court.

Order entered accordingly.

The Clerk of the Court shall give a copy of this memorandum and accompanying order to the attorneys for the defendants and the District Attorney.

J.S.C.Footnotes

Footnote 1:I note that an analogous failure by defense counsel in Valles did not prevent the majority from reviewing the claim that the grand jury should have been instructed on the affirmative defense of extreme emotional disturbance. Valles, 62 NY2d at 38-39. See also id. at 42 n* (Meyer, J., dissenting).