This is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered 3 January 1974, convicting him of criminal possession of a dangerous drug in the third and fourth degrees (two counts each), upon a jury verdict, and imposing sentence.
The court affirms judgment.
The court has previously affirmed the conviction of appellant’s codefendant.
The testimony of the People’s witnesses establishes the following facts:
Police officers M and B, after entering a building through a rear door, maintained a surveillance of the entrance to codefendant D’s first-floor apartment, from a concealed position. When police officers M and B saw D make a sale at his door to an unknown male of what proved to be heroin, police officer M drew his gun and identified himself to them. The unknown purchaser dropped the glassine envelopes and fled from the building with police officer B in pursuit. Police officer M retrieved the envelopes and entered D’s apartment foyer. Police officer M saw D standing at the end of the room and appellant L seated on the bed through the open bedroom door.
In plain view of police officer M on the bed were four plastic bags containing a white powder and seven tinfoil packets. Later on when the contents were examined, both heroin and cocaine were found. Also in plain view on a dresser, there were tablets of methadone, a scale, four measuring spoons and approximately 50 empty manila envelopes and, on an end table, were a large plastic bag containing marijuana and 13 empty glassine envelopes. A fully-loaded semi-automatic gun was also visible in the corner behind the headboard of the bed. A search of the bedroom disclosed a loaded pistol underneath the bed, several tinfoil packets under the bed sheets and a box containing approximately 1,000 empty glassine envelopes in the end table drawer. There were three persons in the apartment: the defendant, L and a child. At the precinct, D admitted that there was an ounce of cocaine worth $750 in the apartment.
The defense introduced two witnesses. PG, the first witness, testified that he was the godfather of D’s son and had loaned someone about $1,000 for D. On the afternoon in question, he was standing in front of the building. He saw M enter and bang on D’s door. Minutes later, he saw B enter the building and go into D’s apartment. No one ran out of the building after M entered. DS, the second witness, testified that on the same afternoon she was present in the apartment for 5 or 10 minutes before the police arrived. She was alone in the bedroom, lying on the bed watching television, and appellant and D were fixing up a room, nailing and lifting wood. Possession could not be proved.
There was a knock at the door, appellant went to answer it and the police officers entered together. There were no drugs or weapons in open view in the bedroom or anywhere else in the apartment. The police searched, found nothing and left empty-handed.
In rebuttal, on the other hand, police officers M and B identified DS as the woman who had appeared at the apartment after the defendants were arrested, and to whom they had entrusted the child and a wallet which had been found in the apartment containing almost $1,000.
D was indicted and charged with the sale of heroin. In a separate indictment, appellant and D were jointly charged with four counts of drug possession and D alone was charged with weapons possession. The District Attorney concedes that the weapons possession counts against D alone were improperly joined in one indictment with the drug possession counts against both defendants and that the consolidation for trial of the two indictments was improper. Appellant did not object to the joinder of the counts against D for weapons possession with the counts against both defendants for drug possession. He did object to the consolidation of the indictments and the joint trial.
The court finds that the appellant was not prejudiced by the joint trial. All of the offenses charged in both indictments stemmed from the same criminal transaction. Evidence of the sale of heroin and of the presence of weapons in the bedroom would have been properly before the jury as a natural part of the narrative of events regardless of whether the indictments were consolidated for trial as was held in an analogous case of People v. Minor. Further, the Trial Judge informed the jurors that the defendants were being tried together largely as a matter of convenience under certain rules and procedures and instructed them to examine the entire case separately to determine whether each one as an individual has been proved guilty beyond a reasonable doubt. Since one of the drugs was identified as cocaine by the police chemist, appellant was not prejudiced by D’s post-arrest statement. Since appellant was not charged with weapons possession, no prejudice could result from the prosecutor’s speculation during his summation that perhaps the defendants were going for the guns.
The Trial Judge adequately communicated to the jurors that the statutory presumption of possession of drugs in open view in a private room is a permissive one and not one which they were required to draw. The language used was that specifically suggested by the Court of Appeals in the case of People v. Leyva. The Judge’s statement that there are situations when it is not necessary for the People to prove knowing and unlawful possession, while unfortunate, is not grounds for reversal when one considers the charge as a whole under the facts of this case. The Judge charged twice on the presumption of innocence. He stated repeatedly that possession must be knowing and voluntary and that the People must prove appellant’s guilt beyond a reasonable doubt. Appellant offered no evidence to rebut the presumption. The defense strategy was to discredit the police entirely. PG testified that he was outside of the apartment and that there was no sale. DS testified she was inside the apartment and there was no contraband in open view. PG’s testimony is internally inconsistent as he admitted that the police did not carry a rifle into the apartment, but that they did carry one out. Further, his testimony contradicts DS’s testimony that the police left empty-handed. On the whole record, the proof of appellant’s guilt is overwhelming and there is no reasonable possibility that errors, if any, might have contributed to the conviction.
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