        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

359
KA 05-00889
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

MARVIN FORSYTHE, DEFENDANT-RESPONDENT.


SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR APPELLANT.

CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Oneida County Court (Michael L.
Dwyer, J.), dated April 6, 2005. The order granted that part of
defendant’s motion seeking to dismiss the indictment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, that part of the motion seeking to
dismiss the indictment is denied, the indictment is reinstated and the
matter is remitted to Oneida County Court for further proceedings on
the indictment.

     Memorandum: After defendant was charged with criminal possession
of a controlled substance in the first degree (Penal Law § 220.21 [1])
and criminal possession of a controlled substance in the third degree
(§ 220.16 [1]), County Court granted that part of defendant’s motion
seeking to dismiss the indictment charging him with those crimes. The
People appealed, and we reversed the order and reinstated the
indictment (People v Forsythe, 20 AD3d 936). After a jury trial,
defendant was convicted of attempted criminal possession of a
controlled substance in the first degree (§§ 110.00, 220.21 [1]) and
attempted criminal possession of a controlled substance in the third
degree (§§ 110.00, 220.16 [1]). We affirmed the judgment on direct
appeal (People v Forsythe, 59 AD3d 1121, lv denied 12 NY3d 816).
Defendant moved to vacate the judgment pursuant to CPL 440.10 on the
ground that he was denied his right to counsel or his right to
effective assistance of counsel on the People’s interlocutory appeal
from the order in Forsythe (20 AD3d 936). The court denied the
motion, and we granted defendant permission to appeal. We converted
defendant’s appeal from the order denying his CPL 440.10 motion to a
motion for a writ of error coram nobis, and granted the motion (People
v Forsythe, 105 AD3d 1430, 1431). We therefore vacated the orders of
this Court entered July 1, 2005 (Forsythe, 20 AD3d 936) and February
11, 2009 (Forsythe, 59 AD3d 1121), and we vacated the judgment of
conviction. We now consider the People’s appeal de novo.
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                                                         KA 05-00889

     We agree with the People that the court erred in concluding that
there was legally insufficient evidence before the grand jury to
permit the inference that defendant constructively possessed the
drugs. On a motion to dismiss the indictment pursuant to CPL 210.20
(1) (b), “the inquiry of the reviewing court is limited to the legal
sufficiency of the evidence; the court may not examine the adequacy of
the proof to establish reasonable cause” (People v Jennings, 69 NY2d
103, 115; see People v Reyes, 75 NY2d 590, 593). The “reviewing court
must consider ‘whether the evidence viewed in the light most favorable
to the People, if unexplained and uncontradicted, would warrant
conviction by a petit jury’ ” (People v Bello, 92 NY2d 523, 525; see
People v Mikusziewski, 73 NY2d 407, 411; Jennings, 69 NY2d at 115).
In the context of grand jury proceedings, “legal sufficiency means
prima facie proof of the crimes charged, not proof beyond a reasonable
doubt” (Bello, 92 NY2d at 526). Thus, we must determine “ ‘whether
the facts, if proven, and the inferences that logically flow from
those facts supply proof of every element of the charged crimes,’ and
whether ‘the [g]rand [j]ury could rationally have drawn the guilty
inference’ ” (id.).

     With respect to constructive possession, “the People must show
that the defendant exercised ‘dominion or control’ over the property
by a sufficient level of control over the area in which the contraband
is found or over the person from whom the contraband is seized”
(People v Manini, 79 NY2d 561, 573). The People may establish
constructive possession through circumstantial evidence (see People v
Torres, 68 NY2d 677, 678-679).

     The People presented evidence before the grand jury that a
package containing cocaine was opened by an employee of the United
Parcel Service (UPS) upon determining that the address listed on the
package did not exist. The police were called, and they seized the
package. Later, a customer called UPS looking for the package and
gave the correct address. The police delivered the package to that
address and arrested a woman who resided at that address and signed
for the package. The police also arrested defendant, who was observed
“hanging around the front of the house” before and after the delivery.
We conclude that the evidence before the grand jury was legally
sufficient to establish that defendant exercised dominion and control
over the woman who signed for the package or over the package
containing cocaine. The People presented evidence that defendant went
to the house earlier that morning looking for the package. In
addition, the telephone number listed on the package and given by the
customer who called UPS looking for the package was the telephone
number of one of the cellular telephones found on defendant’s person
at the time of his arrest.

     We further agree with the People that the court erred in
determining that the integrity of the grand jury proceeding was
impaired when the People instructed the jurors that the woman who
signed for the package was an accomplice as a matter of law.
Dismissal of an indictment pursuant to CPL 210.20 (1) (c) is warranted
“only where a defect in the indictment created a possibility of
prejudice” (People v Huston, 88 NY2d 400, 409; see CPL 210.35 [5]).
                                 -3-                          359
                                                        KA 05-00889

It is “limited to those instances where prosecutorial wrongdoing,
fraudulent conduct or errors potentially prejudice the ultimate
decision reached by the [g]rand [j]ury” (Huston, 88 NY2d at 409).
Accomplice testimony must be supported by corroborative evidence (see
CPL 60.22 [1]). An accomplice “means a witness in a criminal action
who, according to evidence adduced in such action, may reasonably be
considered to have participated in . . . [t]he offense charged; or . .
. [a]n offense based upon the same or some of the same facts or
conduct which constitute the offense charged” (CPL 60.22 [2] [a], [b];
see People v Besser, 96 NY2d 136, 147; People v Berger, 52 NY2d 214,
219). Here, the People presented evidence that the woman who signed
for the package agreed to plead guilty to criminal facilitation in the
fourth degree (Penal Law § 115.00 [1]), and to cooperate with the
police, and we therefore agree with the People that the woman was an
accomplice as a matter of law (see Besser, 96 NY2d at 147). Moreover,
even assuming, arguendo, that the woman was not an accomplice as a
matter of law, we cannot agree with the court that the error in so
instructing the jury prejudiced the ultimate decision reached by the
grand jury.




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
