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DEFENDANT’S PRESENCE WHERE METHAMPHETAMINE WAS BEING PRODUCED AND APPARENT POSSESSION (IN A BACKPACK) OF CHEMICAL REAGENTS (BATTERIES AND SALT) USED IN METH PRODUCTION, WERE INSUFFICIENT TO DEMONSTRATE CONSTRUCTIVE POSSESSION OF METH LAB EQUIPMENT, CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s convictions relating to his presence in an apartment where methamphetamine was being produced, determined the evidence did not support the defendant’s constructive possession of the relevant contraband in the apartment:

… [W]e find that the evidence fell short of establishing that defendant constructively possessed the requisite items with the necessary intent. The uncontroverted evidence established that defendant did not live in or have keys to the apartment or store any of his personal belongings there … . Rather, the evidence demonstrated that the apartment was leased to Stevens and Short, that Schunk had recently been staying in the apartment and that defendant and Gardner had arrived at the apartment, as guests, not long before the police. Stevens, Short and Gardner … adamantly testified that, although he likely knew what was occurring in the apartment, defendant did not participate in the process of preparing, producing or manufacturing the methamphetamine…. . Stevens and Short each testified that defendant did not use methamphetamine that day, that they had never observed defendant use methamphetamine and that defendant was only in the apartment to try to convince Schunk that she needed to enter a rehabilitation program. Stevens also testified that defendant did not know how to make methamphetamine. Further, the responding officers stated that, unlike their observations of Stevens, they did not observe any black soot, which is indicative of methamphetamine production, on defendant’s clothing or hands. …

Stevens testified that defendant arrived with a backpack and that batteries (a reagent [used in meth production]) from that backpack went into the bathroom with him and Gardner. Stevens vaguely testified that the backpack contained “lab equipment,” but stated that he did not see defendant use anything out of the backpack. The evidence revealed that a backpack was ultimately recovered from the living room and that the backpack contained sea salt, a reagent in the production of methamphetamine, but no “lab equipment.”

Viewed in the light most favorable to the People … , the evidence could reasonably support the conclusion that defendant had dominion or control over two reagents — batteries and salt. However, considering the witness testimony and the photographs demonstrating the extremely cluttered state of the living room and apartment overall, the evidence was legally insufficient to establish that defendant “had the ability and intent to exercise dominion or control over” any of the items of lab equipment seized from the apartment … . People v Gillette, 2019 NY Slip Op 09323, Third Dept 12-26-19

 

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