text:
    [652 NE2d 919, 629 NYS2d 173]
    The People of the State of New York, Appellant, v Mike Gray, Respondent. The People of the State of New York, Appellant, v Patricia Cooper, Respondent. The People of the State of New York, Appellant, v Marshal Gordon, Respondent. The People of the State of New York, Respondent, v Lenton Ivey, Appellant. The People of the State of New York, Respondent, v Michael Barnes, Appellant. The People of the State of New York, Respondent, v Francisco Tejada, Also Known as Rubin Rodriguez, Appellant.
    Argued March 28, 1995;
    decided May 11, 1995

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Joseph J. Dawson, Mark Dwyer and Polly Greenberg of counsel), for appellant in the first and second above-entitled actions.
    I. Defendant’s guilt of fourth degree drug possession, as charged to the jury without objection, was proven beyond a reasonable doubt. Defendant’s legal insufficiency claim was not preserved for review by a specific objection, motion to dismiss, or request to charge, and the Court below, therefore, lacked power to reach that complaint as a question of law. (People v Ryan, 82 NY2d 497; People v Dekle, 56 NY2d 835; People v Cipolla, 6 NY2d 922; People v Gomez, 67 NY2d 843; People v Velasquez, 76 NY2d 905; People v Logan, 74 NY2d 859; People v Bynum, 70 NY2d 858; People v Chaitin, 61 NY2d 683; People v Darragh, 141 App Div 408, 203 NY 527; People v Turley, 153 App Div 671; People v Blake, 121 App Div 613, 193 NY 616.) II. The Court below should not have evaluated legal sufficiency in light of People v Ryan (82 NY2d 497) because the trial was conducted before that decision changed the law; but, even under that new standard, the proof was legally sufficient to support defendant’s conviction. (People v Blacknall, 63 NY2d 912; People v Favor, 82 NY2d 254; People v Mitchell, 80 NY2d 519; Griffith v Kentucky, 479 US 314; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 459 US 837; People v Kaplan, 76 NY2d 140; People v Reisman, 29 NY2d 278, 405 US 1041; People v Sprowal, 84 NY2d 113.)

      Jonathan P. Willmott, New York City, and Philip L. Weinstein for respondent in the first above-entitled action.
    I. The Court below correctly reviewed, "on the law,” the sufficiency of the evidence. (People v Velasquez, 76 NY2d 905.) II. Where the evidence showed only that defendant held a bag containing 79 vials filled with crack cocaine weighing, in the aggregate, 3/100 of an ounce more than one eighth of an ounce, the prosecution did not sufficiently prove that defendant knew that the drugs weighed at least one eighth of an ounce, as was required by Penal Law § 220.09 (1). (People v Ryan, 82 NY2d 497; People v Leyva, 38 NY2d 160; Leary v United States, 395 US 6; Tot v United States, 319 US 463; People v Scarborough, 49 NY2d 364.)

      Susan H. Salomon, New York City, and Philip L. Weinstein for respondent in the second above-entitled action.
    I. The Court below was required to review respondent’s legal insufficiency claim. (Osborne v Ohio, 495 US 103; United States v Carr, 5 F3d 986; United States v Kaplan, 586 F2d 980; United States v Curtis, 568 F2d 643; United States v Ward, 914 F2d 1340; Cohoon v Rees, 820 F2d 784; People v Velasquez, 76 NY2d 905.) II. People v Ryan (82 NY2d 497 [1993]) applies to respondent’s case. (People v McLaurin, 157 Misc 2d 783.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Nancy D. Killian and Peter D. Coddington of counsel), for appellant in the third above-entitled action.
    The Court below erred as a matter of law when it modified the judgment, on the law, based on a claim of evidentiary insufficiency that was not specifically raised in the trial court; the intermediate appellate court also erred in applying this Court’s decision in People v Ryan (82 NY2d 497) retroactively; in any event, appellant’s guilt of criminal possession of a controlled substance in the fifth degree was established beyond a reasonable doubt by legally sufficient evidence. (People v Vientos, 79 NY2d 771; People v Velasquez, 151 AD2d 159, 76 NY2d 905; People v Logan, 74 NY2d 859; People v Grega, 72 NY2d 489; People v Colavito, 70 NY2d 996; People v Bynum, 70 NY2d 858; People v Kennedy, 68 NY2d 569; People v Gomez, 67 NY2d 843; People v Chaitin, 61 NY2d 683.)

      Adrienne Hale, New York City, and Philip L. Weinstein for respondent in the third above-entitled action.
    I. The Court below properly addressed the merits of defendant-respondent’s insufficiency claim "on the law.” (People v Velasquez, 76 NY2d 905.) II. The Court below correctly modified respondent’s conviction (1) where the evidence was insufficient to prove that respondent was guilty of criminal possession of a controlled substance in the fifth degree, which requires knowledge of pure weight, where respondent possessed a number of vials containing the substance, and (2) where the prosecution failed to establish the pure weight of the substance. (People v Ryan, 184 AD2d 24, 82 NY2d 497; People v Favor, 82 NY2d 254; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184; People v Scarborough, 49 NY2d 364; People v Reisman, 29 NY2d 278; People v Pepper, 53 NY2d 213; People v Morales, 37 NY2d 262; Desist v United States, 394 US 244; People v Mitchell, 80 NY2d 519.)

      Debevoise & Plimpton, New York City (Elizabeth Buckley of
      counsel), and Philip L. Weinstein for appellant in the fourth above-entitled action.
    I. Appellant’s guilt of felony-level drug possession was not proven where even the experienced arresting police officer believed that the cocaine at issue weighed less than the statutory threshold for the crime charged. (People v Ryan, 82 NY2d 497.) II. The complete omission of the knowledge-of-weight element of the crime from the Judge’s instructions to the jury requires this Court to order a new trial. (People v Wallens, 297 NY 57; People v Patterson, 39 NY2d 288; People v Lewis, 64 NY2d 1031; People v Walker, 198 NY 329; People v Steele, 26 NY2d 526; People v Flynn, 79 NY2d 879; People v Williams, 62 NY2d 765.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Joseph J. Dawson, Mark Dwyer and Ellen Sue Handman of counsel), for respondent in the fourth above-entitled action.
    I. Since defendant’s complaints about legal insufficiency and the jury charge were never brought to the Trial Judge’s attention, they do not present a question of law for review by this Court. (People v Ryan, 82 NY2d 497; People v Dekle, 56 NY2d 835; People v Gomez, 67 NY2d 843.) II. The People presented legally sufficient proof of defendant’s guilt even under the standard articulated in People v Ryan, which should not be applied retroactively to resuscitate unpreserved claims in any event. (Jackson v Virginia, 443 US 307; People v Acosta, 80 NY2d 665; People v Tejeda, 73 NY2d 958; People v Carter, 63 NY2d 530; People v Malizia, 62 NY2d 755, 469 US 932; People v Contes, 60 NY2d 620; People v Lewis, 64 NY2d 1111; People v Kennedy, Al NY2d 196; People v Ben-zinger, 36 NY2d 29; People v Steinberg, 79 NY2d 673.)

      Svetlana M. Kornfeind, New York City, and Philip L. Weinstein for appellant in the fifth above-entitled action.
    I. The Court below erred in refusing to review appellant’s insufficiency claim and in failing to review the weight of the evidence. (People v Ryan, 82 NY2d 497; People v Bleakley, 69 NY2d 490; Jackson v Virginia, 443 US 307; People v Walker, 81 NY2d 661; People v Williams, 66 NY2d 629; People ex rel. Arcara v Cloud Books, 65 NY2d 324, 478 US 697; People v Thompson, 60 NY2d 513; People v Anderson, 66 NY2d 529; People v Barber, 289 NY 378.) II. The insufficiency and charge errors in appellant’s claim under People v Ryan (82 NY2d 497 [1993]) violate the mode of proceedings and, therefore, present questions of law for this Court’s review; to the extent that People v Bynum (70 NY2d 858 [1987]) bars such review, it should be overruled; accordingly, the People failed to prove beyond a reasonable doubt that appellant knew that he possessed at least 500 milligrams of pure cocaine, and the court erred in failing to submit the knowledge-of-weight element to the jury. (People v Briggins, 50 NY2d 302; People v Dekle, 56 NY2d 835; People v Wrieden, 299 NY 425; People v McCarthy, 250 NY 358; People v Ledwon, 153 NY 10; People v Bennett, 49 NY 137; People v Drislane, 8 NY2d 67; People v Shattuck, 194 NY 424; Jackson v Virginia, 443 US 307; People v Robinson, 36 NY2d 224.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Joseph J. Dawson, Mark Dwyer and Sheryl Feldman of counsel), for respondent in the fifth above-entitled action.
    I. Defendant’s guilt of fifth degree drug possession, as charged to the jury without exception, was proven beyond a reasonable doubt. Since his complaints about legal insufficiency and the jury charge were never brought to the Judge’s attention and involve a fact that was not expressly disputed at trial, they do not present a question of law for review by this Court or the Court below. Defendant’s claims to the contrary would require this Court to overturn well-settled rules of law that have served this State well for more than 125 years. (People v Dekle, 56 NY2d 835; People v Cipolla, 6 NY2d 922; People v Gomez, 67 NY2d 843; People v Thompson, 41 NY 1; Wilke v People, 53 NY 525; Johnson v People, 55 NY 512; Wood v People, 53 NY 511; People v Grossman, 168 NY 47; People v Bresler, 218 NY 567; People v Velasquez, 76 NY2d 905.) II. The People presented legally sufficient proof of defendant’s guilt even under the standard articulated in People v Ryan (82 NY2d 497), which should not be applied retroactively to resuscitate unpreserved claims in any event. (People v Blacknall, 63 NY2d 912; People v Favor, 82 NY2d 254; People v Mitchell, 80 NY2d 519; Griffith v Kentucky, 479 US 314; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 459 US 837; People v Kaplan, 76 NY2d 140; People v Reisman, 29 NY2d 278, 405 US 1041; People v Sprowal, 84 NY2d 113; People v Antommarchi, 80 NY2d 247.)

      Arthur H. Hopkirk, New York City, and Philip L. Weinstein for appellant in the sixth above-entitled action.
    I. The Court below erred (a) when it relied upon counsel’s failure to object to the Judge’s charge concerning the elements of the crime as a basis for refusing to entertain appellant’s argument that the evidence of his knowledge of the weight of the cocaine he momentarily possessed was insufficient; and (b) when it failed to review the weight of the evidence. (People v Bleakley, 69 NY2d 490.) II. This Court should review the sufficiency of the evidence based upon defense counsel’s general motion for a trial order of dismissal or, in the alternative, as a "mode of proceedings” error and, pursuant to that review, should find that appellant’s guilt of felony-level drug possession was not proven; in the alternative, the complete omission of an element of the crime from the Judge’s instructions to the jury was a fundamental error which requires this Court to order a new trial. (People v Nixon, 248 NY 182; Jackson v Virginia, 443 US 307; People v Ryan, 82 NY2d 497; People v Abdullah, 164 AD2d 260; People v Mendoza, 81 NY2d 963; People v Wallens, 297 NY 57; People v Patterson, 39 NY2d 288; People v Walker, 198 NY 329; People v Steele, 26 NY2d 526; People v Lewis, 64 NY2d 1031.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Howard B. Sterinbach and Peter D. Coddington of counsel), for respondent in the sixth above-entitled action.
    I. The new rule of State law announced in People v Ryan (82 NY2d 497 [1993]) should be given prospective only application to trials conducted after December 16, 1993. (People v Blacknall, 63 NY2d 912; People v Antommarchi, 80 NY2d 247; People v Mitchell, 80 NY2d 519; Griffith v Kentucky, 479 US 314; People v Pepper, 53 NY2d 213, 454 US 967; People v Favor, 82 NY2d 254; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184; People v Kaplan, 76 NY2d 140; People v Scarborough, 49 NY2d 364; People v Reisman, 29 NY2d 278, 405 US 1041.) II. The Court below correctly found appellant’s claim that the evidence was insufficient to prove his guilt of criminal possession of a controlled substance in the fourth degree unpreserved given his failure to move to dismiss on that specific ground and his failure to object to the charge of that crime as given. (People v Vientos, 79 NY2d 771; People v Velasquez, 151 AD2d 159, 76 NY2d 905; People v Logan, 74 NY2d 859; People v Grega, 72 NY2d 489; People v Colavito, 70 NY2d 996; People v Bynum, 70 NY2d 858; People v Kennedy, 68 NY2d 569; People v Gomez, 67 NY2d 843; People v Chaitin, 61 NY2d 683; People v Thomas, 36 NY2d 514.) III. There is no basis for this Court to remit this case back to the Court below to evaluate the weight of the evidence since, to the extent appellant raised a weight of the evidence claim there, that Court considered it; moreover, appellant’s claim that weight of the evidence must be evaluated by the statutory elements of the crime and not as that crime was charged to the jury is baseless. (People v Bleakley, 69 NY2d 490; People v Chipp, 147 AD2d 989, 75 NY2d 327; People v Bamberg, 51 NY2d 868; People v Alfinito, 16 NY2d 181; People v Smith, 63 NY2d 41, 469 US 1227; People v Davis, 43 NY2d 17, 435 US 998; People v Crum, 272 NY 348; People v Dekle, 56 NY2d 835.)

      Brenner & Scott, Melville (Jonathan C. Scott of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae in all the above-entitled actions.
    No individual should stand convicted absent proof of guilt of every element of the offense. (People v Bleakley, 69 NY2d 490; Jackson v Virginia, 443 US 307; People v McLucas, 15 NY2d 167; People v Patterson, 39 NY2d 288; Smith v United States, 360 US 1; People v Foy, 32 NY2d 473; People v Spadafora, 131 AD2d 40; Ulster County Ct. v Allen, 442 US 140; People v Bynum, 70 NY2d 858; People v James, 111 AD2d 254.)

      Christine Duisin, Riverhead, for New York State District Attorneys’ Association, amicus curiae in the second, third, fourth, fifth and sixth above-entitled actions.
    I. Defendants’ Ryan claims, raised for the first time on appeal, are not preserved for appellate review as questions of law. (People v Ryan, 82 NY2d 497; People v Martin, 50 NY2d 1029; People v Robinson, 36 NY2d 224; People v Kilpatrick, 143 AD2d 1; People v Dekle, 56 NY2d 835; People v Lawrence, 64 NY2d 200; People v Velasquez, 76 NY2d 905; People v Bonaparte, 78 NY2d 26; People v Mehmedi, 69 NY2d 759; People v Creech, 60 NY2d 895.) II. Ryan should not be applied retroactively.
   OPINION OF THE COURT

Smith, J.

We hold that where a defendant seeks to argue on appeal, in accordance with People v Ryan (82 NY2d 497), that the People have failed to establish the defendant’s knowledge of the weight of drugs, preservation of that contention is required by an appropriate objection.

In each of these cases the defendant argues that no preservation by specifically raising the issue of proof of the defendant’s knowledge of weight is necessary. Some contend that, at most, a general motion to dismiss is all that is necessary in order to claim that the evidence of knowledge of weight is insufficient for a conviction. They rely on both statutory provisions (CPL 470.05, 470.15 [4] [a], [b]) and on the Due Process Clauses of the Federal and State Constitutions. The People counter that preservation is necessary, advancing both historical and practical reasons.

Turning first to defendants’ statutory claims, in order to preserve a claim of error in the admission of evidence or a charge to the jury, a defendant must make his or her position known to the court. Notwithstanding contentions to the contrary, we hold that preservation is required in these cases. The preservation mandate is not new. We noted in People v Cona (49 NY2d 26, 33, n 2) that even where a motion to dismiss for insufficient evidence was made, the preservation requirement compels that the argument be "specifically directed” at the alleged error which, here, is the failure of the People to show that the defendants had knowledge of the weight of the contraband. Similarly, in People v Dekle (56 NY2d 835, 837), we rejected the defendant’s due process challenge, holding that no due process violation occurred where a defendant was convicted upon proof sufficient to satisfy the court’s charge where the defendant failed to preserve his attack upon the charge. Recently, in People v Hill (85 NY2d 256, 259, supra), we stressed that "where the issue is fully preserved for our review, the knowledge requirement is applicable to tbe [specified criminal possession and criminal sale charges]” (emphasis supplied).

In People v Kilpatrick (143 AD2d 1, 2-3), the Appellate Division interpreted the difference between paragraphs (a) and (b) of CPL 470.15 (4) and held that where a defendant argues that evidence to support his or her conviction was legally insufficient, the traditional strictures of preservation do not apply. That Court reached this conclusion by focusing upon the omission, in paragraph (b), of the statement included in paragraph (a), that the error be "duly protested” by the defendant. Those paragraphs read:

"4. The kinds of determinations of reversal or modification deemed to be upon the law include, but are not limited to, the following:
"(a) That a ruling or instruction of the court duly protested by the defendant, as prescribed in subdivision two of section 470.05, at a trial resulting in a judgment, deprived the defendant of a fair trial;
"(b) That evidence adduced at a trial resulting in a judgment was not legally sufficient to establish the defendant’s guilt of an offense of which he was convicted” (emphasis supplied).

Defendants’ contention that CPL 470.15 (4) (a) and (b) eliminate the necessity of preservation is misplaced. It is true that the specific language of preservation is present in CPL 470.15 (4) (a) and absent from CPL 470.15 (4) (b). Despite the Appellate Division’s and defendants’ interpretations, we are of the view that this portion of Kilpatrick, construing CPL 470.15 (4) as described, should not be followed given its direct conflict with our holdings in Cona and Dekle, which govern here (see also, People v Bynum, 70 NY2d 858, 859 [general motion to dismiss at close of evidence insufficient to preserve claim regarding establishment of particular element of crime]; People v Stahl, 53 NY2d 1048, 1050 [requiring more than blanket trial order of dismissal to preserve specific claim involving critical conversation]).

The preservation rule is necessary for several reasons. Under article VI, § 3 of the New York State Constitution, the Court of Appeals, with limited exceptions, is empowered to consider only "questions of law” (People v Beige, 41 NY2d 60). The chief purpose of demanding notice through objection or motion in a trial court, as with any specific objection, is to bring the claim to the trial court’s attention. A general motion fails at this task (People v Narayan, 54 NY2d 106). As a practical matter, a general motion to dismiss is often no more helpful to the Trial Judge than would be a motion predicated on an erroneous ground. A sufficiently specific motion might provide the opportunity for cure before a verdict is reached and a cure is no longer possible (see, e.g., CPL 260.30 [7]).

Second, a timely objection alerts all parties to alleged deficiencies in the evidence and advances the truth-seeking purpose of the trial. Third, the timely objection advances the goal of swift and final determinations of the guilt or nonguilt of a defendant.

Defendants’ claim that the convictions here, since they are based on insufficient evidence, represent a violation of the proper "mode of proceedings,” is also unavailing. This language, derived from our decision in People v Patterson (39 NY2d 288, 295, affd 432 US 197), provides an exception to traditional preservation rules in constricted circumstances:

"There is one very narrow exception to the requirement of a timely objection. A defendant in a criminal case cannot waive, or even consent to, error that would effect the organization of the court or the mode of proceedings prescribed by law. (Cancemi v People, 18 NY 128, 138; People ex rel. Battista v Christian, 249 NY 314, 319.) In Cancemi, it was held that a defendant could not consent to being tried by a jury of less than 12 members. In People ex rel. Battista v Christian (supra), the court ruled that an information charging a defendant with an 'infamous’ crime was a nullity, despite defendant’s consent, where the State Constitution provided that infamous crimes could be prosecuted only by Grand Jury indictment. Thus, the rule has come down to us that where the court had no jurisdiction, or where the right to trial by jury was disregarded, or where there was a fundamental, nonwaivable defect in the mode of procedure, then an appellate court must reverse, even though the question was not formally raised below” (emphasis supplied).

The Patterson exception is, by definition of the Court, narrow in application. Defendants here attempt to apply it broadly, in a fashion not contemplated by this Court. The Patterson Court’s description of the exception clarifies that the rule goes to the general and over-all procedure of the trial, forbidding alteration of mandated procedural, structural, and process-oriented standards. The examples set forth by Patterson— changing of the burden of proof, consent to less than a 12-member jury in a criminal case, deviation from State constitutionally mandated requirements for an indictment — show that the claimed errors here should not fall within that exception. Some of the defendants contend that the failure to charge the jury that the People must prove that knowledge of the weight of the contraband possessed lessened the burden of proof and thus constituted reversible error under Patterson. However, in People v Thomas (50 NY2d 467, 472), we stated that a jury charge that is merely capable of being interpreted in such a way as to shift the burden of proof is not a Patterson error. Because Ryan itself states that it merely interpreted the language of the Penal Law on possessory offenses, the jury, too, could have interpreted the statutory language to mean that defendants must be shown to have had knowledge of the weight, even in the absence of an explicit charge. Moreover, an assertion that an element is missing from the proof required goes to substance and not to the mode of proceedings.

We also note that concerns that defendants’ rights are diminished by the holding here are misplaced. It should be emphasized that even where defendants have failed to adequately preserve claims for appellate review, they may request that the Appellate Divisions apply their "interest of justice” jurisdiction under CPL 470.15 (3). Nothing we hold here intrudes upon that jurisdiction.

We turn now to the specific cases before us.

People v Gray

Defendant was convicted of criminal possession of a controlled substance in the fourth degree. The Appellate Division, although not detailing the facts, concluded that the evidence did not support the conclusion that he had knowledge of the weight of the controlled substance (204 AD2d 35). It relied on People v Kilpatrick (143 AD2d 1, 3, supra) in determining that no preservation was necessary.

Leave to appeal was granted by a Judge of this Court.

We reverse and remit to the Appellate Division.

People v Gordon

Defendant was convicted of criminal possession of a controlled substance in the fifth degree after a jury trial. The Appellate Division modified the judgment, on the law, by reducing the conviction to criminal possession of a controlled substance in the seventh degree (204 AD2d 22). Sua sponte, leave to appeal to this Court was granted by one of the two dissenting Justices.

The evidence established that police officers saw defendant on a street trafficking in crack cocaine. He was arrested and found in possession of 50 vials containing what laboratory analysis established as 1,493 milligrams of 86% pure cocaine. Penal Law § 220.06 (5) makes it a crime to "knowingly and unlawfully” possess 500 or more milligrams of cocaine.

In reducing the verdict, the Appellate Division concluded that despite the absence of a specific objection to the lack of evidence of knowledge of weight, the issue was preserved as determined in People v Kilpatrick (143 AD2d 1, supra). The Appellate Division concluded that there was no evidence of knowledge of weight and that People v Ryan had to be retrospectively applied.

Justice Sullivan concurred in the order. While he stated that preservation of the issue of knowledge of weight was necessary, he concluded that the issue of scienter had been given to the jury in two supplemental instructions that the cocaine was " 'knowingly and unlawfully possessed by the defendant in a weight of five hundred milligrams or more’ ” and that the defendant " 'knowingly and unlawfully possessed an amount of cocaine in excess of 500 milligrams.’ ” (204 AD2d 22, 23.) He further concluded that the evidence was insufficient to support a jury verdict that defendant had knowledge of the weight of the substance.

Justice Asch dissented. He agreed that the scienter requirement was properly charged to the jury. He concluded, however, that defendant’s knowledge of the weight could be found in the number of vials and in the weight of almost three times the threshold required.

Because there was no preservation, we reverse and remit to the Appellate Division.

People v Cooper

Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the fifth degree. The Appellate Division modified the judgment by reducing the conviction to criminal possession of a controlled substance in the seventh degree (204 AD2d 24).

The evidence was that when a police officer observed the defendant knotting a plastic bag, she volunteered that the white powder was cocaine which she had bought for $40. The expert testimony was that there were 28 grains consisting of 1,814 milligrams which was 62.3% pure cocaine.

The Appellate Division concluded that defendant’s generalized motion to dismiss at the end of the People’s case and defendant’s request for a jury charge on the lesser included offense of criminal possession of a controlled substance in the seventh degree were insufficient to preserve the issue of the defendant’s knowledge of the weight of the substance. It concluded, however, that no preservation was necessary and relied on People v Kilpatrick (143 AD2d 1, 3, supra). It concluded further that to convict the defendant when one of the statutory elements of the crime was absent would be a denial of due process.

Justice Asch dissented. He interpreted Kilpatrick to mean that the Appellate Division could review an issue in the absence of preservation where the claim was that the evidence was insufficient in light of the charge to the jury. He, thus, would have affirmed the conviction. The dissenting Justice, sua sponte, granted leave to appeal to this Court.

We reverse and remit to the Appellate Division.

People v Ivey

Defendant was convicted, following a jury trial, of criminal possession of a controlled substance in the second degree. The evidence was that he had possessed a substance of an aggregate weight of more than two ounces of cocaine. The Appellate Division affirmed (204 AD2d 16). Justice Sullivan, writing for the majority, noted that prior to People v Ryan, trial and intermediate appellate courts, as well as prosecutors and defense attorneys, had relied on the fact that no scienter requirement existed with respect to the weight element of a drug possession charge. Citing People v Dekle (56 NY2d 835, 837, supra), the Court noted that where there was no objection to the charge for failure to include the issue of scienter, the issue was not preserved. The majority also interpreted Kilpatrick to permit review of the sufficiency of the evidence only in light of the charge to the jury.

Two Justices concurred in the result in an opinion written by Justice Ellerin. While they concluded that Kilpatrick made it unnecessary to preserve the scienter issue, they found knowledge of the weight in the defendant’s handling of a substance which weighed almost four ounces. Leave to appeal was granted by the concurring Justice Rosenberger.

Because of the lack of preservation, we affirm.

People v Barnes

Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the fifth degree. The Appellate Division affirmed, with two Justices dissenting (204 AD2d 33). Leave to appeal to this Court was granted, sua sponte, by Justice Rosenberger, one of the dissenting Justices.

The facts indicate that the police were given a tip by a passerby that "a young black kid” was on the street, near 41st Street and Eighth Avenue in Manhattan, selling drugs. When the police approached the youth, he threw a bag to the ground which turned out to contain 22 vials with 887 milligrams of pure crack cocaine. Defendant was arrested as he tried to run away.

The Appellate Division relied on People v Ivey (supra) and concluded that the Ryan issue had not been preserved. In dissent Justice Rosenberger relied on Kilpatrick to conclude that the issue of knowledge of weight had been preserved. He concluded further that the People had failed to prove that the defendant had knowledge of the weight of the drugs. Noting that "[t]he difference between misdemeanor weight and the amount of cocaine possessed by the defendant was .01365 ounce” (204 AD2d, at 35), Justice Rosenberger determined that the amount was too small to determine weight from mere handling. In a separate dissent, Justice Tom relied on Kilpatrick in concluding that the issue was preserved. He also relied on People v Cooper (supra) and determined that People v Ryan was retroactive.

We affirm.

People v Tejada

Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the fourth degree. The Appellate Division affirmed (204 AD2d 30). Leave to appeal was granted, sua sponte, by Justice Tom, one of the dissenting Justices.

The facts, as related in the dissent, indicate that a gypsy cab was stopped near University Avenue and Hall of Fame Terrace in the County of Bronx, New York City, after it went through a red light. Prior to the stop and after it had gone through the light, the cab picked up two passengers. When the officers approached the cab, one of the two passengers sitting in the back attempted to slide a zippered pouch to the other. The other passenger put the pouch on the floor and attempted to kick it towards the front seat. A police officer retrieved the pouch and found foil packets which later were proved to contain one eighth of an ounce and 33.4 grains of a substance containing cocaine.

The majority relied on People v Ivey (supra) in affirming the conviction. In a dissent which Justice Wallach joined, Justice Tom relied on his partial dissent in People v Barnes.

We affirm.

Accordingly, in People v Gray, People v Cooper, and People v Gordon, the order of the Appellate Division in each case should be reversed and the case remitted to the Appellate Division, First Department, for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b). In People v Ivey, People v Barnes and People v Tejada, the order of the Appellate Division in each case should be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

In People v Gray, Cooper and Gordon: Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

In People v Ivey, Barnes and Tejada: Order affirmed.

      . In People v Hill (85 NY2d 256), we recently held that the knowledge requirement of our decision in People v Ryan should be applied retroactively, where the issue was preserved, in cases pending on direct appeal as of December 16, 1993.

      . CPL 470.05 reads, in part: "2. For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an ’exception’ but is sufficient if the party made his position with respect to the ruling or instruction known to the court. * * * In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.”


source: Caselaw Access Project

author: Smith, J. Bellacosa, J.

license: Public Domain

text:
    [652 NE2d 925, 629 NYS2d 179]
    The People of the State of New York, Appellant, v Tomas Sanchez, Respondent. The People of the State of New York, Appellant-Respondent, v Jose Garcia, Respondent-Appellant.
    Argued March 28, 1995;
    decided June 7, 1995

      POINTS OF COUNSEL

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Billie Manning and Joseph N. Ferdenzi of counsel), for appellant in the first above-entitled action and appellant-respondent in the second above-entitled action.
    The indictments were supported by legally sufficient evidence before the Grand Jury. (People v Ryan, 82 NY2d 497; People v Reyes, 75 NY2d 590; People v Jennings, 69 NY2d 103; People v Warner-Lambert Co., 51 NY2d 295; People v Pelchat, 62 NY2d 97; People v Dordal, 55 NY2d 954; People v Valles, 62 NY2d 36; People v Dunleavy, 41 AD2d 717, 33 NY2d 573; People v Galatro, 84 NY2d 160; People v Mayo, 36 NY2d 1002.)

      Mitchell J. Briskey, New York City, and Philip L. Weinstein for respondent in the first above-entitled action.
    The motion court properly reduced the first count of the indictment, where the District Attorney presented no evidence to the Grand Jury which would have permitted an inference that respondent had knowledge of the weight of the cocaine contained in the package allegedly possessed. (People v Ryan, 82 NY2d 497; People v Jennings, 69 NY2d 103; People v Swamp, 84 NY2d 725; People v Dumas, 68 NY2d 729; People v Kenney, 30 NY2d 154; People v Acosta, 80 NY2d 665; People v Mizell, 72 NY2d 651; People v Reisman, 29 NY2d 278; People v Leyva, 38 NY2d 160; Ulster County Ct. v Allen, 442 US 140.)

      Victor Schurr, Bronx, for respondent-appellant in the second above-entitled action.
    I. The indictment was not supported by legally sufficient evidence. (People v Ryan, 82 NY2d 497; People v Okehoffurum, 201 AD2d 508; People v Pelchat, 62 NY2d 97; People v Jackson, 18 NY2d 516; People v Deitsch, 97 AD2d 327; People v Dunleavy, 41 AD2d 717, 33 NY2d 573.) II. The Court below erred in reinstating the count of criminal possession of a controlled substance in the third degree. (People v George, 67 NY2d 817; People v Lawson, 84 Misc 2d 24; People v McGruder, 63 AD2d 947; People v Nelson, 189 AD2d 828; People v Mitchell, 169 AD2d 478; People v Monroe, 186 AD2d 93; People v Alvino, 71 NY2d 233.)

      Brenner & Scott, Melville (Jonathan C. Scott of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae in the first and second above-entitled actions.
    No individual should stand convicted absent proof of guilt of every element of the offense. (People v Ryan, 82 NY2d 497; People v Bleakley, 69 NY2d 490; Jackson v Virginia, 443 US 307; Smith v United States, 360 US 1; People v Foy, 32 NY2d 473; People v Spadafora, 131 AD2d 40; Ulster County Ct. v Allen, 442 US 140; People v Bynum, 70 NY2d 858; People v James, 111 AD2d 254.)
   OPINION OF THE COURT

Smith, J.

The issue in these cases is whether the evidence before the Grand Jury was sufficient to support charges of criminal possession of contraband under our decision in People v Ryan (82 NY2d 497). Ryan requires that the People demonstrate sufficient legal evidence of a defendant’s knowledge of the weight of prohibited drugs to sustain the possession charges in these cases. The evidence of defendant’s knowledge in Sanchez was sufficient whereas such evidence in Garcia was insufficient.

In People v Sanchez, two police officers were on routine motor patrol in Bronx County when they observed a car with its trunk lock "popped out.” They directed the driver of the car to stop. As the officers approached the car, a single passenger in the rear appeared to be fumbling with something. That passenger opened the rear door and attempted to flee. One of the officers grabbed him, and, after a struggle, succeeded in removing defendant’s hand from his left front outer jacket pocket. The officer recovered a brown paper bag which, upon later discovery, contained cocaine of an aggregate weight of 8% ounces. The motion court concluded that the evidence, before the Grand Jury, of defendant’s knowledge of weight was legally insufficient to sustain the charge of criminal possession of a controlled substance in the first degree. It, therefore, reduced count one of the indictment from criminal possession of a controlled substance in the first degree to criminal possession of a controlled substance in the seventh degree. The Appellate Division affirmed.

In People v Garcia, the police stopped defendant for a traffic infraction while he was driving in Bronx County. A plastic bag containing 3XA ounces and 3 grains of cocaine was recovered from the automobile. The motion court found no evidence of defendant’s knowledge of the weight was presented to the Grand Jury. It reduced count one of the indictment from criminal possession of a controlled substance in the second degree to criminal possession of a controlled substance in the seventh degree. It also dismissed count two of the indictment which charged criminal possession of a controlled substance in the third degree. The Appellate Division modified in Garcia by reinstating count two, and otherwise affirmed.

In a joint memorandum which determined both Sanchez and Garcia, the Appellate Division noted that the trial court properly concluded that the evidence before the Grand Jury was insufficient to establish that defendants possessed the requisite knowledge of the weight of the substance they possessed. Regarding Garcia, the Appellate Division determined that the trial court erred by dismissing count two of the indictment charging defendant with criminal possession of a controlled substance in the third degree. The Court reasoned that intent to sell may be established by proof that a defendant possessed a significant quantity of drugs, citing People v Alvino (71 NY2d 233, 245). Thus, as to Garcia, the Appellate Division reinstated count two of the indictment. A Judge of this Court granted the People leave to appeal in both cases, and, in Garcia, granted defendant leave to cross-appeal.

The People argue that the indictments were supported by sufficient evidence. Defendant Sanchez contends that the motion court properly reduced the first count of the indictment. Defendant Garcia, like Sanchez, claims that the indictment in his case was insufficient, and, additionally, urges that the Appellate Division erred by reinstating the count of his indictment for criminal possession of a controlled substance in the third degree.

In Ryan, we determined that the Legislature did not intend to make the weight of a drug a strict liability element. The felony-weight offenses of possession of a controlled substance therefore contain an element of mental culpability as to the weight of the drugs possessed.

As we wrote in Ryan:

"Often there will be evidence from which the requisite knowledge may be deduced, such as negotiations concerning weight, potency or price (see, e.g., People v Acosta, 80 NY2d 665, 668, n 1, and 672-673). Similarly, for controlled substances measured on an 'aggregate weight’ basis (see, e.g., Penal Law § 220.06 [2]), knowledge of the weight may be inferred from defendant’s handling of the material, because the weight of the entire mixture, including cutting agents, is counted * * *.
"By contrast, that same inference may be unavailable for controlled substances measured by 'pure’ weight, like psilocybin. The effective doses of these drugs may be minuscule, and they are customarily combined with other substances to facilitate handling and use. In these circumstances it may indeed be difficult to show defendant’s knowledge of the weight. Although we cannot simply read the knowledge requirement out of the statute, these 'compelling practical considerations’ may inform our interpretation of that element (see, People v Mizell, 72 NY2d, at 654)” (82 NY2d, at 505).

We went on to say that, at a minimum, a person in possession of drugs is not "deserving of enhanced punishment unless he or she is aware that the amount possessed is greater” than the statutory threshold (id., at 505). Where culpability is based on pure, as opposed to aggregate, weight, possession alone does not give rise to such an inference. We concluded with the observation that our purpose was "not to survey all of the permissible methods [of proving weight] but to clarify that the statute does in fact contain a weight-related mental culpability element” (id., at 506).

Having made that ruling in Ryan, we are now called upon in these cases to perform the additional task we were not required to undertake there: to survey permissible methods of proving a defendant’s knowledge.

Knowledge, like other forms of mental culpability, typically is established directly by admission, circumstantially by conduct, or indirectly by contradictory statements from which guilt may be inferred (People v Reisman, 29 NY2d 278, 285; see also, People v Mizell, 72 NY2d 651, 656; People v Barnes, 50 NY2d 375, 381; People v Sierra, 45 NY2d 56, 60). Where a defendant possesses illegal drugs, we have recognized that possession alone suffices to permit the inference that the possessor knows the nature of what is possessed, especially (but not exclusively) if it is in the defendant’s hands or vehicle or on the defendant’s person or premises (Reisman, 29 NY2d, at 285-286). Inferences of knowledge are rooted in probabilities based on experience and proof (id.).

Where the inference to be drawn is that of weight — as opposed to the bare fact that the substance possessed was an illegal drug — possession alone does not readily support the conclusion that defendant was also aware that the drugs possessed were of a certain weight. In order to avoid overpenalizing someone who "unwittingly possesses a larger amount of a controlled substance than anticipated” (Ryan, 82 NY2d, at 505), there generally must be additional evidence from which knowledge of weight in particular can be inferred. We emphasize that it is culpability for "unwitting” possession we seek to avoid. There may be instances where possession combined with other factors — such as the substantial quantity of drugs possessed or the manner in which they are packaged— supports the conclusion that defendant was aware of the weight of the drugs possessed.

"Handling” of drugs, contrary to the interpretation of some lower courts, is not limited to instances where the defendant manipulates the substance in the process of manufacture and packaging of drugs. It merely connotes sufficient contact with the substance to experience its weight — to give rise to a probability defendant became aware of the weight of the drugs in his possession. Such contact need not lead to precise knowledge of weight in ounces or grams. One need not know the precise weight, in pounds and ounces, of a cantaloupe to know that it has a certain heft, and is heavier than an orange. When one is charged with discerning minuscule variations in weight, however — assessing the difference in weight between two and seven grapes, for example — presumptions break down. In many drug prosecutions, similarly, a defendant’s level of culpability could increase drastically by the presence of milligrams above the statutory threshold. Presuming the defendant knew the weight of the drugs was just above — as opposed to just below — the statutory threshold is problematic. Possession alone could rarely be enough in such a close case.

Some cases are simpler than others. When drugs are packaged in vials, with roughly the same quantity in each vial throughout the drug-dealing industry, possession of a specific number of vials of cocaine would generally give rise to an inference defendant knew he possessed that particular quantity of drugs (see, e.g., Ryan, 82 NY2d, at 506 [discussing evidence that, typically, possession of "dose” of drug is evidence of knowledge of weight of dose]). Where there is evidence of the price paid for a quantity of drugs, then there is evidence defendant knew its weight, since value is based on weight.

In People v Sanchez there was more than mere possession of an indeterminate quantity of drugs. Sanchez had over eight ounces of cocaine on his person, more than twice the threshold amount for criminal possession of a controlled substance in the first degree. The evidence need not establish awareness, down to the last grain, of the precise weight of drugs in the defendant’s possession. Possession of such a substantial quantity of drugs was evidence that he was aware he possessed at least half that amount, and thus was sufficient for the Grand Jury to indict.

Furtive conduct — while present here — is not particularly probative, since possession of any amount of controlled substance is a crime (People v Mizell, supra) and even a person unaware of the quantity of drugs possessed might try to conceal possession of a substance known to be illegal. Defendant Sanchez struggled against arrest, but that conduct alone did not establish that he was an experienced courier of drugs, familiar with drugs and drug trade. In his case, therefore, possession alone of an amount of drugs well in excess of the threshold amount was sufficient to support an inference of knowledge that he possessed at least the threshold amount.

In People v Garcia, possession alone is not enough to establish knowledge of weight because the amount possessed was so close to the statutory limit of two ounces, and no other circumstances indicated familiarity with drugs that might lead to knowledge of weight. As we observed in Ryan, there may be instances where it is indeed difficult to show defendant’s knowledge of the weight, but we cannot simply read the knowledge requirement out of the statute (Ryan, 82 NY2d, at 505). While the practical considerations of the difficulties in prosecuting drug possession cases may inform our interpretation of that element, there may be instances where the People will simply have to proceed with a lesser degree offense in order to make out a legally sufficient case. Where a minute quantity of drugs lifts the defendant over the threshold to a higher count of drug possession, possession of that greater amount may be unwitting. In that instance, there is legally insufficient evidence to support the element of knowledge of weight.

For these same reasons, the order of the Appellate Division, insofar as it reinstated Garcia’s conviction of third degree possession with intent to sell, must be reversed. While defendant’s possession of a "substantial” quantity of drugs can be cited as circumstantial proof of an intent to sell (People v Alvino, 71 NY2d 233, 245, supra), it cannot be said as a matter of law that the quantity of uncut and unpackaged drugs possessed in this case permitted an inference that defendant intended to sell them. More than mere possession of a modest quantity of drugs, not packaged for sale and unaccompanied by any other saleslike conduct, must be present for such an inference to arise. We caution, however, that we do not conclude here that possession of 314 ounces of cocaine, as a matter of law, cannot be a legally sufficient amount of contraband to support a sale charge. Our position is that, on these facts, there is no indication that defendant had knowledge of the weight of the drugs. None of the commonly known indicia of weight, such as telltale packaging, knowledge of value, or a voluminous appearance of the drugs was present here (see, Ryan, 82 NY2d, at 506, supra).

Finally, People v Swamp (84 NY2d 725) does not require a different result. Swamp addressed the question of sufficiency of evidence that a substance possessed by defendant was an illegal drug, not sufficiency of evidence of defendant’s knowledge of weight. In order to present a legally sufficient case to the Grand Jury, the People need submit no more than "competent evidence which, if accepted as true” would establish each element of the crime (CPL 70.10 [1]). That standard is simply not met, however, where the sole evidence proffered on the element of knowledge of weight of drugs possessed is the bare fact that defendant possessed drugs of a quantity that rose just above the statutory threshold of two ounces.

Accordingly, in People v Sanchez, the order of the Appellate Division should be reversed and defendant’s motion to reduce the charge in count one of the indictment denied. In People v Garcia, the order of the Appellate Division should be modified by dismissing count two of the indictment and, as so modified, affirmed.

Bellacosa, J.

(dissenting in part in People v Garcia only). In People v Sanchez (decided in a combined opinion for the Court with People v Garcia), Judge Simons and I concur in the unanimous determination that sufficient evidence was presented to the Grand Jury to support defendant Sanchez’s indictment. In People v Garcia, while we agree in the unanimous determination that no evidence or inferences are available to support the charge of criminal intent to sell cocaine (see, Penal Law § 220.16 [1]), we find sufficient evidence and inferences to uphold the criminal possession accusation, just as the Court does in Sanchez. Thus, we respectfully dissent from that part of the Court’s ruling in the Garcia case.

The undercover officer testified in Garcia that during routine patrol he observed defendant’s vehicle proceed through a stop sign. The officer pulled the vehicle over and, as he approached from the passenger side, he saw defendant remove a clear plastic bag from the jacket on which he was sitting. He then watched defendant move and place the bag under the driver’s seat. Defendant was arrested and the bag of crack cocaine was confiscated. The People also presented the Grand Jury with a chemist’s lab report showing that the clear plastic bag contained 3!4 ounces and three grains of crack cocaine.

The sole question is whether the People presented legally sufficient evidence to the Grand Jury (CPL 70.10 [1]), providing that body with a basis and record from which it could draw permissible inferences to accuse defendant of criminal possession of a controlled substance in the second degree (see, Penal Law § 220.18). We conclude that the presentment was sufficient under long-standing rules of review. Ironically, even under the new test and analysis propounded for application in People v Sanchez, decided together today, we would find sufficient evidence for the charge to be lodged.

People v Ryan (82 NY2d 497, 505), a posttrial-review-ofevidence case, fortifies our view. Indeed, in People v Hill (85 NY2d 256, 263), decided this year, the Court applied Ryan and held that knowledge of the requisite minimum weight of the drugs may be inferred, for guilt beyond a reasonable doubt, from defendant’s " handling’ ” of the materials or from the "negotiations during a narcotics transaction, including discussions about price” (id., at 263 [emphasis added]). In Ryan, a pure weight, not an aggregate weight situation as here, the Court tendered the same analysis and guidance (82 NY2d 497, 505, supra).

Most significantly and distinguishably, the instant Garcia case is a Grand Jury accusatory stage matter involving aggregate weight crack cocaine in a bag handled by the defendant. Its procedural first-stage setting compels an a fortiori application of the relevant aspects of the Ryan and Hill cases— unless the Court is retreating or lessening their weight.

Also, the difference in the Garcia case from the Sanchez case is that, in the latter, the handled contraband weighed "more than twice the threshold amount;” (majority opn, at 34 [emphasis added]) in Garcia, it weighed almost twice the threshold amount. That is not an analytical difference and the amounts are quantitatively so close that a different and principled difference in result is not warranted. The new rule, such as it is, will be nearly impossible to discern or apply evenhandedly in motion courts on the virtually automatic application to inspect Grand Jury minutes and dismiss indictments made in every criminal case. We respectfully suggest that the analysis, the rule propounded and the eventual attempted application in thousands of cases are not constructively advanced by characterizing defendant Garcia’s handling and secreting of his bag of crack cocaine as "minuscule,” "minute,” "modest,” or "so close to the statutory limit” (it was more than 1 Vi times the statutory limit) (majority opn, at 33, 34, 35). Nor is this case about presumptions, but rather only about customary inferences allowable to be drawn by a Grand Jury at the accusatory stage.

This Court recently stated in People v Swamp (84 NY2d 725) that the proper standard for reviewing the sufficiency of the evidence to support an indictment is "legal sufficiency,” and that favorable inferences flow to the People at this accusatory stage (id., at 730; see also, People v Mikuszewski, 73 NY2d 407, 411). Additionally, at the pleading stage, a reviewing court must view the evidence supporting the indictment in the light most favorable to the People (see, People v Warner-Lambert Co., 51 NY2d 295, 299, cert denied 450 US 1031), and the court may not substitute itself for the Grand Jury in drawing or not drawing permissible inferences or drawing different inferences, as the Court seems to be doing in the Garcia analysis (see, People v Dordal, 55 NY2d 954, 956).

The standard itself is defined in CPL 70.10 (1) as "competent evidence which, if accepted as true, would establish every element of an offense charged” (see also, People v Jennings, 69 NY2d 103, 115). This standard focuses the appellate reviewing courts on the determination only of whether the facts, if proven, and the inferences that logically flow from those facts, supply proof of every element of the charged crime. That other innocent inferences could possibly be drawn from the facts — what the majority repeatedly and speculatively refers to as the possible "unwitting” accused cases — is beside the point, so long as a Grand Jury could reasonably have drawn a guilty inference for accusatory purposes only (see, People v Reisman, 29 NY2d 278, 283, 285-287, cert denied 405 US 1041). The truly exceptional unwitting possessors of legislatively classified levels of contraband are entitled to their opportunity to counter the commonsense inferences and universal experience before the trier of the facts — usually a petit jury (id., at 285-287). Accordingly, evidence may be "legally sufficient” even though it turns out to be insufficient to sustain guilt beyond a reasonable doubt, or not enough to provide " ' ’’reasonable cause” to believe that the defendant committed the crime charged’ ” (see, People v Mikuszewski, 73 NY2d 407, 411, supra; see also, Commission Staff Comment to Proposed CPL 35.10 [now CPL 70.10], reprinted in McKinney’s 1967 Pamphlet, at 77; People v Sabella, 35 NY2d 158, 167).

Here, the evidence presented to the Grand Jury established that defendant Garcia handled the clear plastic bag of cocaine when he lifted the bag from his personal clothing nearby and then tried to secret it. This handling was more extensive than Sanchez’s, a case in which we unanimously uphold the criminal possession accusation. In Sanchez, the evidence before the Grand Jury showed defendant placing his hand on a paper bag which was in his jacket pocket. Defendant Sanchez did not remove the paper bag, did not otherwise handle the drugs other than touching the package in his pocket, and did not try to secret the package.

The contrary result in the Garcia case on the criminal drug possession accusation creates a new, amorphous and quite arbitrary weight or heft differential and classification superimposed by this Court on the weight units prescribed by the Legislature. Thus, we dissent in People v Garcia.

In People v Sanchez: Order reversed and defendant’s motion to reduce the charge contained in count one of the indictment denied.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

In People v Garcia: Order modified by dismissing count two of the indictment and, as so modified, affirmed.

Chief Judge Kaye and Judges Titone, Levine and Ciparick concur with Judge Smith; Judge Bellacosa dissents in part in a separate opinion in which Judge Simons concurs.


author: Smith, J.

text:
    [652 NE2d 932, 629 NYS2d 186]
    The People of the State of New York, Respondent, v Joseph DaGata, Appellant.
    Argued May 1, 1995;
    decided June 8, 1995

      POINTS OF COUNSEL

      Richard E. Mischel, P. C., New York City (Richard E. Mischel, Linda Goldman and Julie Miller of counsel), for appellant.
    Defendant-appellant was deprived of a fair trial by the trial court’s sua sponte decision to conduct an in camera inspection of the DNA notes and to refuse the defense access to those notes after concluding that they were not exculpatory or probative of anything relevant at trial. (People v Slowe, 125 Misc 2d 591; People v Banch, 80 NY2d 610; People v Young, 79 NY2d 365; People v Bugayong, 182 AD2d 450; United States v Jakobetz, 955 F2d 786; United States v Martinez, 3 F3d 1191; People v Wesley, 83 NY2d 417; People v Washington, 196 AD2d 346, 83 NY2d 1008; People v Davis, 196 AD2d 597, 84 NY2d 824; Matter of Diaz v Lukash, 82 NY2d 211.)

      James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Patricia A. Murphy of counsel), for respondent.
    The trial court did not abuse its discretion in ruling after in camera review that the FBI materials were not Brady or Rosario material and were "not probative of anything relevant at trial”. Further, appellant’s present claims in this regard are not preserved for review by this Court. Moreover, appellant waived any claim by his suggestion that the FBI report be admitted into evidence. (People v Nieves, 67 NY2d 125; People v Pavao, 57 NY2d 960; People v McDowell, 47 NY2d 858; People v Weston, 56 NY2d 844; People v Schiavi, 64 NY2d 704; People v Gonzalez, 55 NY2d 720, 456 US 1010; People v Medina, 53 NY2d 951; People v Mayers, 100 AD2d 558; People v Nordstrom, 96 AD2d 1125; People v Dawson, 50 NY2d 311.)
   OPINION OF THE COURT

Smith, J.

The issues here are whether (1) FBI notes related to a one-page DNA testing report are within the scope of the discovery rule of CPL 240.20, (2) the prosecution was required to provide these notes upon defendant’s request, notwithstanding that they were not in its possession, and (3) the trial court erred by refusing to direct that defendant receive the notes the FBI used in analyzing DNA evidence in this rape case. Because the defendant repeatedly sought the notes, and they have not been provided to him, we modify and remit to the trial court.

Defendant was convicted, after a jury trial, of rape in the first degree and sodomy in the first degree. The evidence was that after spending an evening dining and socializing with the complainant, who was estranged from her husband, defendant forcibly raped and sodomized her.

Prior to trial, and as part of an omnibus motion, defendant requested discovery including "copies of any and all reports of scientific tests or experiments and memoranda prepared in connection with this case.” Defendant and the complainant submitted blood samples for laboratory examination and the People requested DNA testing. The Suffolk County Laboratory collected the samples from the parties and sent them to the Federal Bureau of Investigation Criminalistics Laboratory in Washington, D.C., to construct a DNA profile. By letter dated September 17, 1991, the FBI reported the following:

"No DNA profile results unlike the K-l [dried blood] sample from the victim were obtained for specimen Q-l [vaginal swabs]; therefore, no comparisons could be made with the known specimen from the suspect.
"The submitted items of evidence and the probed membrane will be returned to your office under separate cover by registered mail” (bracketed material supplied).

Defendant received this report without any accompanying laboratory notes made by the FBI at the time of its analysis.

On March 2, 1992, after the opening statements and prior to any witness being called, the defense attorney noted that he had received a summary sheet of an FBI analysis of DNA evidence. He protested the fact that he had not received the FBI notes requested in his omnibus motion. The District Attorney stated that he had no obligation to provide them. The Court did not direct their production but noted the prosecutor’s obligation under CPL 240.45 to produce Rosario material.

During the trial, the one-page FBI summary was admitted into evidence without objection during the testimony of Charles Wagner, a forensic serologist for the Suffolk County Crime Laboratory. While there was no objection to the admission of the report, defendant objected to and the court sustained objections to any questions concerning Wagner’s analysis of the FBI document. Subsequently, defendant was convicted of both charges in the indictment, rape and sodomy.

On March 20, 1992, after the verdict was reached, defendant moved for an order directing the FBI to disclose and submit to the court "all records in their possession pertaining to laboratory analysis and tests performed with respect to samples furnished to their laboratory by the defendant, Joseph Dagata and by the alleged victim of the underlying crime.” In his affirmation in support of the motion, defendant referred to his discovery request pursuant to CPL 240.20 (1) (c), to his request after the opening statements of the parties, to his own unsuccessful efforts to obtain the material from the FBI, and to the possibility that the material was either Rosario or Brady material. The prosecution opposed the motion on the grounds that it was not in possession of the notes. By decision dated April 8, 1992 the court directed the People to request, from the FBI, all pertinent records for an in camera inspection by the court to determine whether they were exculpatory and otherwise denied the motion. By decision dated May 5, 1992, after the court inspected the notes, it determined they were not Brady material.

Defendant subsequently made a CPL 330.30 motion seeking to set aside the verdict. In defendant’s view, the notes obtained from the FBI were "newly discovered evidence” under subdivision (3) of that statute, on the grounds that "the defendant was deliberately prevented from obtaining documents which the District Attorney was mandated to furnish.” The affirmation in support of the motion included the points made on the prior motion. It also referred to the court’s in camera inspection but contended that defendant was still entitled to the laboratory notes. County Court denied defendant’s motion in all respects and without a hearing. In his brief in the Appellate Division, defendant again made the argument that he was entitled to the FBI laboratory notes, making arguments previously raised in his omnibus motion, at trial and after trial and asserting "the Court’s in camera determination cannot be deemed sufficient review of the materials sought by the defense.” The Appellate Division affirmed, and a Judge of this Court granted defendant’s application for permission to appeal.

Defendant argues that he was deprived of a fair trial by the court’s refusal to give him access to the laboratory notes and by the sua sponte decision to conduct an in camera review of the FBI notes. The People contend that the trial court did not abuse its discretion by conducting the in camera review and also argue that defendant’s claims are unpreserved.

In New York, discovery rules are essentially creatures of legislative policy (see, LaFave & Israel, Criminal Procedure § 20.1 [2d ed 1992]; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 240.10, at 216). This policy is embodied in CPL article 240. One commentator (Preiser, op. cit., at 216-217) has noted a distinction between discovery rules which permit a view of the opponent’s evidence and those which relate to constitutionally guaranteed access to exculpatory information (Brady v Maryland, 373 US 83; People v Vilardi, 76 NY2d 67) or fundamental fairness through a review of any prior statement made by a witness (People v Rosario, 9 NY2d 286, rearg denied 9 NY2d 908, cert denied 368 US 866). While defendant’s previous requests for the FBI notes have referred to both aspects of discovery, it is the former aspect, the one seeking a view of the other side’s evidence, which is central to this appeal. CPL 240.20 (1) (c) requires that the People produce for defendant "[a]ny written report or document, or portion thereof * * * concerning a * * * scientific test or experiment, relating to the criminal action or proceeding,” and made at the request of a public servant involved in law enforcement activity. While a prosecutor may seek a protective order against disclosure, no reason whatsoever is given here for a failure to disclose. The notes defendant sought, 10 pages of notes used by the FBI in preparation of the report submitted to the District Attorney, clearly fall within the statute as "[a]ny written report or document, or portion thereof * * * concerning a * * * scientific test.” According to the record, the FBI had no problem with providing those notes but wanted a court order. Additionally, section 240.20 is generally construed as a mandatory directive, compelling the People to provide the items when sought by the defendant (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 240.20, at 221).

Although the laboratory notes sought in this case may not implicate Rosario rules in the traditional sense since they were not made by a witness who testified, the conclusion that they were not Brady material is not binding on the defendant. DNA research is at the vanguard of law enforcement (see, People v Wesley, 83 NY2d 417). The highly technical nature of this evidence, perhaps open to interpretation given the rapid pace of advances in the development of this field, should be subject to the evaluation and strategy of defendant’s counsel and experts. We have often repeated that the best judge of the value of evidence to a defendant’s case is "the single-minded devotion of counsel for the accused” (People v Baghai-Kermani, 84 NY2d 525, 531; People v Flores, 84 NY2d 184, 187; People v Banch, 80 NY2d 610, 615; People v Young, 79 NY2d 365, 371). To that end and consistent with this State’s philosophy of broad pretrial disclosure, the notes requested by defendant should have been provided. Defendant could have used the notes to determine whether further inquiry would possibly lead to information favorable to defendant’s case (see, People v Wallace, 76 NY2d 953, 955). Defendant might have challenged (1) the FBI’s methodology in general, (2) the type of DNA testing used, (3) storage methods or (4) whether other tests or analyses could have resulted in a more proficient reading of the materials analyzed. Additionally, it was clear from the FBI’s report that materials and analyses other than the report itself were involved. Thus, the People were on notice that the FBI probably possessed substantially more detailed information than the one-page report provided.

We hold that it was error for the trial court to deny access to the FBI notes to the defendant. Any materials regarding "scientific tests” were sought from the outset. The court abused its discretion not by conducting the in camera review but by refusing defendant access to the documents. The trial court’s finding that the notes were not exculpatory under Brady is of no moment concerning their production for defendant. CPL 240.20 provides that defendants receive the information whether or not exculpatory in nature. Moreover, the People specified no good reason to deny defendant access to the notes other than their reluctance to seek the notes themselves.

Notwithstanding the People’s argument to the contrary, defendant’s initial request for the materials in his omnibus motion and his several requests for the materials subsequent to that motion sufficiently preserved the issues before us. Defendant could have moved to compel disclosure (see, CPL 240.35, 240.40). Nevertheless, in light of (1) defendant’s request for the information in his omnibus motion, (2) defendant’s repeated requests to the court for the materials both prior to and during trial, (3) the prosecution’s consistent refusal to provide the material, and (4) the spirit and purpose of CPL 240.20, we conditionally remit to remedy only the prosecution’s erroneous failure to turn over the materials for defendant’s inspection.

Based on the foregoing, the requested material is to be provided to the defendant. If a request is made for a CPL 330.30 hearing, the trial court should entertain it. If a CPL 330.30 hearing is held and defendant is successful, a new trial should be ordered. If defendant is unsuccessful, the judgment of conviction and sentence should be amended to reflect the result of the CPL 330.30 hearing.

Accordingly, the order of the Appellate Division should be modified by remitting the case to County Court, Suffolk County, for further proceedings in accordance with this opinion, and, as so modified, affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order modified by remitting the case to County Court, Suffolk County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.


text:
    [652 NE2d 936, 629 NYS2d 190]
    In the Matter of Marilyn Gomprecht, Respondent, v Gustav Gomprecht, Respondent, and Barbara Sabol, as Commissioner of Social Services of the City of New York, Appellant.
    Argued June 6, 1995;
    decided June 29, 1995

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Trudi Mara Schleifer and Barry P. Schwartz of counsel), for appellant.
    The Court below erred, as a matter of law, in affirming the Family Court’s spousal support award to petitioner, applying the life-style standard, because the standard for spousal support awards pursuant to Family Court Act § 412 where respondent is an institutionalized Medicaid recipient is the more rigorous standard used in fair hearings for spousal support payments to be made by such individuals pursuant to Social Services Law § 366-c. (Blum v Yaretsky, 457 US 991; Patchogue Nursing Ctr. v Bowen, 797 F2d 1137, 479 US 1030; Medical Socy. v Toia, 560 F2d 535; Ledet v Fischer, 638 F Supp 1288; Matter of Nester v Nester, 135 AD2d 878; Matter of Morrison v Morrison, 132 AD2d 985; Matter of Albany County Dept. of Social Servs. v Englehardt, 124 AD2d 140, 69 NY2d 612; Matter of Septuagenarian v Septuagenarian, 126 Misc 2d 699.)

      Epstein Becker & Green, P. C., New York City (Peter J. Strauss and Richard J. Anderson of counsel), for Marilyn Gomprecht, respondent.
    The Family Court properly exercised its discretion to award spousal support to petitioner based on her standard of need. (Matter of Septuagenarian v Septuagenarian, 126 Misc 2d 699; Matter of Albany County Dept. of Social

      Servs. v Englehardt, 124 AD2d 140, 69 NY2d 612; Matter of Nester v Nester, 135 AD2d 878; Matter of Sabot v Lavine, 42 NY2d 1068; Matter of Beaudoin v Toia, 45 NY2d 343.)

      Reynerio E. Muradaz, Brooklyn, for New York City Chapter of the Alzheimer’s Disease and Related Disorders Association, Inc., amicus curiae.

    The Family Court’s decision to grant petitioner’s request for support from her husband was proper in the context of current Federal and State law. The power of Family Court to grant support in excess of amounts awarded by Medicaid has not been abridged by any enactments of the Federal or State Legislatures. Additionally, a reversal of this ruling could have a significant negative impact on many families in New York State.
   OPINION OF THE COURT

Smith, J.

At the time of her petition for support from her husband, brought pursuant to Family Court Act § 412, petitioner’s husband was institutionalized and receiving Medicaid. The issue here is whether in an action for spousal support by a community spouse against an institutionalized spouse, the Family Court is free to apply the prior standard of living or life-style standard rather than the minimum monthly needs allowance standard under Social Services Law § 366-c. We conclude that the appropriate standard is the minimum monthly needs allowance and, accordingly, reverse the order of the Appellate Division.

Medicaid is a joint Federal and State program which provides medical assistance to those without sufficient resources to meet the costs of medical care. As we noted in Matter of Schachner v Perales (85 NY2d 316, 319-320), once a person has entered a nursing home, the greater portion of his or her income is applied to his care. Because of this requirement, many spouses still living in the community became impoverished. Congress sought to ameliorate this result by passing the Medicare Catastrophic Coverage Act (MCCA) (42 USC § 1396r-5, as amended by Pub L 100-360, 102 US Stat 753). It permitted a State to establish a minimum monthly needs allowance for the community spouse, to be provided, if necessary, from the income received by the institutionalized spouse.

Consistent with the requirements of the MCCA, the Social Services Law provides an allowance for the noninstitutionalized or community spouse, $1,764 at the time of the Family Court order (Social Services Law § 366-c [2] [g]). This allowance, referred to as the community spouse monthly income allowance, is paid by the institutionalized spouse to the community spouse, but only to the extent the institutionalized spouse possesses sufficient means and the community spouse’s own income is below the statutory minimum monthly needs allowance. Therefore, the institutionalized spouse’s income available to help pay for his/her medical care is reduced by the amount necessary to bring the community spouse up to the minimum monthly needs allowance level. Additionally, the community spouse is entitled to retain resources totaling $60,000, excluding a home and the land on which it sits, without jeopardizing the institutionalized spouse’s eligibility for Medicaid (Social Services Law § 366-c [2] [d]; 42 USC § 1382b). Social Services Law § 366-c was promulgated to implement, at the State level, the Federal MCCA and "to protect the community spouse from financial disaster when the primary income-providing spouse becomes institutionalized” (Matter of Schachner v Peroles, 85 NY2d 316, 323, supra).

In October 1992, petitioner Marilyn Gomprecht filed a petition in the Family Court seeking an order of support pursuant to Family Court Act § 412 against her husband, respondent Gustav Gomprecht. Respondent was institutionalized in a nursing home from August 17, 1992 until his death on July 16, 1993. At the time of his institutionalization, respondent’s income, consisting of a private pension ($4,143.64) and Social Security ($1,577.67), was $5,721.31 per month. In December 1992, respondent applied for Medicaid benefits to cover the cost of his nursing home care. This initial application for Medicaid was denied due to excess assets.

Respondent had previously transferred nearly all of his assets, totaling well over $1 million, to petitioner. These assets included two residences, an apartment in Manhattan and a house in East Hampton assessed at over $430,000, several bank accounts totaling over $9,000, as well as investments. Respondent filed a request for reconsideration of his application for Medicaid benefits. This second application for benefits was granted in April 1993.

Based on respondent’s application to the New York City Human Resources Administration (HRA) for Medicaid benefits to assist in paying for his nursing home care, pursuant to Social Services Law § 363, and petitioner’s own monthly income, HRA determined that petitioner, as a community spouse, was entitled to receive monthly support of only $306.71 from her institutionalized spouse. This amount would bring petitioner’s total monthly income to the statutorily provided "minimum monthly needs allowance” of Social Services Law § 366-c.

A hearing was held on petitioner’s October 1992 petition filed in Family Court, at which a Hearing Examiner awarded support to petitioner in the amount of $3,339.26 against respondent Gustav on the basis of petitioner’s standard of living and life-style prior to her husband’s institutionalization. This amount included $2,274.86 per month for household expenses, $864.30 per month for personal expenses and $200 per month for an outstanding dental bill. The Hearing Examiner’s determination was confirmed by the Family Court which indicated that the Family Court is not bound by the statutory medical eligibility levels and has discretion to grant support where it deems appropriate based on the circumstances before it. The Appellate Division affirmed the determination that the Family Court was not limited by the income guidelines under Social Services Law § 366-c, but that under Family Court Act § 412, standard of living and life-style were the appropriate tests.

The minimum monthly needs standard establishes a level of support due to the spouse of an individual confined to a nursing home and receiving Medicaid. This standard is consistent with the MCCA. Although the statute provides an option to individuals seeking an increase in monthly support, such individuals are not entitled to an award of support greater in Family Court than that permitted by Social Services Law § 366-c under the fair hearing procedure. As we recently indicated, the intent of the MCCA was " 'to end th[e] pauperization [of the community spouse] by assuring that the community spouse has a sufficient — but not excessive — amount of income and resources available’ while the institutionalized spouse is in a nursing home at Medicaid expense” (Matter of Schachner v Perales, supra, at 323). Consistent with the Federal standards, Social Services Law § 366-c contemplates that an increase is available only to alleviate a true "financial hardship that is thrust upon the community spouse by circumstances over which he or she has no control” (id., at 325). The only way in which petitioner could receive an amount other than the monthly minimum needs allowance is by a showing of exceptional circumstances. She made no such showing here.

Moreover, Social Services Law § 58 does not restrict the Family Court’s powers in applying Social Services Law § 366-c, or limit Family Court’s jurisdiction in issuing support orders. The Family Court’s authority to order support under Family Court Act § 412 on behalf of a noninstitutionalized community spouse must be guided by the income standards of Social Services Law § 366-c. Family Court Act § 412 must be read in conjunction with Social Services Law § 366-c and the Family Court is required to apply the minimum monthly needs standard absent a showing of exceptional circumstances.

Further, the power of the Family Court to award support is already circumscribed by Family Court Act § 412 which provides, first, that the paying spouse must be "possessed of sufficient means” to pay support and, second, that any award must be made with "due regard to the circumstances of the respective parties.” The fact that one spouse is institutionalized at the public expense is a factor to be considered. Thus linking the Family Court award to the spousal award available under Social Services Law § 366-c is required.

Petitioner in her support petition initially requested maintenance of the Manhattan apartment as well as the house on Long Island. Although she later withdrew her request for maintenance of both the house and apartment and only requested maintenance for the house, petitioner essentially sought to maintain her prior life-style and have the public subsidize it. The express intent of the MCCA is "to mitigate a perceived societal wrong that is a by-product of the Medicaid scheme itself’ (Schachner, 85 NY2d, at 325). That intent, of righting a perceived wrong, would not be furthered by providing petitioner with the remedy she seeks here.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to Family Court for further proceedings in accordance with this opinion.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order reversed, etc.

      . The figure, as of January 1, 1995, was $1,871.

      . There is apparently an error in computation. The Family Court’s order was for $3,339.26; however, the amounts included in the award totaled only $3,339.16.

      . Social Services Law § 58 provides: "Nothing in this chapter shall be deemed to take away the jurisdiction or any power or duty of the family court”.