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Lopez v. Curry

decided: September 15, 1978.

FRANK A. LOPEZ, AS NEXT OF FRIEND, ATTORNEY FOR AND IN BEHALF OF CARMEN GARCIA, PETITIONER-APPELLEE,
v.
PHYLLIS CURRY, CORRECTIONAL SUPERINTENDENT, BEDFORD HILLS CORRECTIONAL FACILITY, BEDFORD HILLS, NEW YORK, OR ANY-ONE HAVING CUSTODY AND/OR CONTROL OF CARMEN GARCIA, RESPONDENT-APPELLANT.



Appeal from an order entered in the United States District Court for the Southern District of New York, Charles E. Stewart, J., granting a writ of habeas corpus following the conviction of Carmen Garcia in New York Supreme Court, Kings County, for possession of cocaine and possession with intent to sell. Affirmed.

Before Kaufman, Chief Judge, Lumbard and Mulligan, Circuit Judges.

Author: Kaufman

Aware of the limits of mortal knowledge, legislatures often enact statutes ordaining that proof of one fact shall imply existence of another. But the link between the proven fact and the presumed one must not be tenuous nor may it invade the factfinding province of the jury.

In this case Carmen Garcia challenges a State conviction based upon N.Y.Penal Law § 220.25(1), which declares that presence of narcotics in an automobile "is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found." Judge Stewart found the statute unconstitutional on its face and as applied to Garcia, and granted her habeas corpus petition. Although we uphold the statute, as authoritatively construed by New York State's highest court, we find that the State trial judge's instructions encroached upon the jury's duty to find proof of possession beyond a reasonable doubt. Accordingly, we affirm the judgment of the district court.

I.

The facts necessary for an understanding of Garcia's contentions are clear from the state record, and they may be briefly limned. On September 22, 1971, New York City police received a telephone tip*fn1 that a gold-colored 1969 Chevrolet, bearing Florida license plates and carrying a kilogram of cocaine, would be on the Brooklyn side of the Williamsburgh Bridge that afternoon at 4:00 p.m. A flying squad of narcotics detectives intercepted such a car soon after it crossed the bridge from Manhattan to Brooklyn. At the wheel of the Chevrolet was Jose Low. Widelto Leyva occupied the seat closest to the passenger door. Between them sat Garcia.

When Detectives Raymond Viera and John McClean reached the automobile, they noticed a brown manila envelope protruding about three inches from under the right front seat, between Garcia and Leyva. Upon opening the envelope, which measured approximately 9 X 12 X 1/2, Viera discovered two plastic packets containing a white powdery substance. As the informant had assured the authorities, the substance was almost precisely one kilogram of cocaine.

Low, Leyva, and Garcia were charged with knowing possession of a controlled substance and possession with intent to sell. They were tried together in Kings County Supreme Court before Justice Garbarino and a jury. Viera and McClean, corroborated by their partners in the arresting squad, testified to stopping the car and discovering the envelope. A chemist identified the substance in the plastic bags as cocaine, and the State rested. The only witness for the defense was Low, who testified that he had never met Garcia and Leyva before the day of the arrest and that he was driving them to Brooklyn as a favor to a friend.

The proof clearly established that all three defendants were present in the Chevrolet when the cocaine was discovered. To make the critical leap from "presence" to "knowing possession," the State relied heavily upon § 220.25(1). In his summation, Prosecutor Barra told the jury, "I merely have to prove automobile, presence, found contraband in that automobile. That is what I must prove beyond a reasonable doubt."*fn2

Justice Garbarino's charge echoed the prosecutor's view of the statute:

(U)pon proof of the presence of cocaine in the vehicle, and further upon proof that these three defendants were in the car with the cocaine at the time of the arrest, the Penal Law says in effect that from this evidence, each of the defendants in the automobile possessed the cocaine, knowingly possessed the cocaine.*fn3

The trial judge did tell the jury that the State always bears the burden of proving the defendants guilty beyond a reasonable doubt and that the presumption did not affect this burden. In addition, he told the jury that the presumption could be overcome by defense evidence. But he charged that the State was entitled to its presumption unless the rebuttal evidence was "substantial" and "create(d) a reasonable doubt in your minds that the defendants knowingly possessed this cocaine."

The jury convicted all three defendants of possession, and Garcia and Leyva but not Low of possession with intent to sell. The Appellate Division affirmed, as did the Court of Appeals, People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.2d 546 (1975). Having exhausted her state remedies,*fn4 Garcia brought this ...


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