
    [762 NE2d 329, 736 NYS2d 643]
    The People of the State of New York, Respondent, v Dashon Hines, Appellant.
    Argued September 13, 2001;
    decided October 23, 2001
    
      POINTS OF COUNSEL
    
      Frank H. Hiscock Legal Aid Society, Syracuse (Shirley K. Duffy of counsel), for appellant.
    
      William J. Fitzpatrick, District Attorney of Onondaga County, Syracuse (James P. Maxwell and Victoria M. Anthony of counsel), for respondent.
   OPINION OF THE COURT

Graffeo, J.

At issue is whether a trial court that denied a motion to dismiss at the close of the People’s case-in-chief may review that decision in the context of a post-verdict CPL 330.30 motion after defendant called witnesses and testified on his own behalf. Because we conclude that Supreme Court erred in revisiting its prior denial, we affirm the order of the Appellate Division reinstating defendant’s conviction.

Defendant Dashon Hines and co-defendant Jamie Crawford were charged with criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1] [possession of four or more ounces of a narcotic drug]), criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1] [possession with intent to sell]), and criminally using drug paraphernalia in the second degree (Penal Law § 220.50 [3] [possession of scales and balances under circumstances evincing an intent to use them for manufacture or sale of a narcotic drug]). The charges arose from the discovery of more than 14 ounces of cocaine, drug paraphernalia and $7,900 in an apartment defendant had leased from the Syracuse Housing Authority. The contraband was found after firefighters, who entered defendant’s apartment in the course of extinguishing a fire in the apartment below, saw cocaine and drug paraphernalia in the open hall pantry. This led to a search of the premises by police officers pursuant to a warrant, who discovered more contraband in the bedroom along with personal property belonging to defendants.

Defendants were tried jointly before a jury. The People offered evidence that defendant took possession of the apartment in March 1998 and remained the sole tenant of record until he signed a termination of tenancy form on December 1, 1998, the same day the cocaine was found by the authorities. A Syracuse Housing Authority employee testified that defendant had obtained duplicate keys for the apartment four times over the course of his tenancy, including on the morning of December 1, 1998 — only hours before firefighters entered the apartment. After several police officers and firefighters detailed the events leading to the discovery of the contraband and the ensuing search of the apartment, the contraband was received in evidence. The prosecution also introduced into evidence various documents pertaining to defendant’s rental of the apartment, including the lease between defendant and the Housing Authority. In addition, the People submitted correspondence addressed to defendant at the apartment which had been found on the premises, as well as a cable television installation receipt signed by defendant, showing he purchased service for the apartment in his own name using the apartment address.

The People contended that defendants used the apartment as a “stash house” where cocaine was stored and prepared for resale. A police officer with extensive training and experience as an undercover narcotics investigator testified that cocaine traffickers commonly keep a house or apartment for such use where they do not necessarily reside. Based on the items discovered in the apartment and the manner in which the cocaine and money were packaged, the officer opined, without objection from defendants, that the apartment “was utilized for a stash house and packaging location.”

After the People rested their case-in-chief, defendant’s attorney moved to dismiss the charges, arguing the People had failed to offer sufficient proof to support a jury inference that defendant exercised dominion or control over the apartment. The Trial Judge denied the motion. Both defendants then testified and called witnesses.

Defendant did not dispute that he was the sole tenant of record for the apartment but maintained that he had sublet it to a series of individuals, culminating with co-defendant Crawford. He asserted that he did not keep any belongings in the apartment or spend time there, but had merely stopped by infrequently to collect rent money from his tenants. On the morning of the day the drugs were discovered, defendant claimed he used his key to gain entrance when Crawford, who defendant maintained was asleep, failed to answer the door. On cross-examination, defendant admitted that he went into the bedroom during this visit. He alleged that Crawford agreed to meet him later at another location to pay the rent. Defendant also testified that he went to the Housing Authority office and completed a termination of tenancy form later that day after Crawford refused to pay all the rent that he owed.

Crawford offered a different account of the events. He denied that he had been at the apartment on the day the contraband was discovered, and thus contradicted defendant’s testimony concerning what transpired that morning. He stated that he had not slept at the apartment the evening before and knew nothing of the narcotics, drug paraphernalia or cash the authorities confiscated. Notwithstanding defendant’s contention that he never spent time in the apartment, Crawford indicated that defendant used the apartment for recreational purposes, even when Crawford was not there.

At the conclusion of all of the proof, defendant’s attorney requested that the charge of criminal possession in the first degree be reduced to criminal possession in the fourth degree, but did not renew the previous CPL 290.10 motion or otherwise argue that the indictment should be dismissed due to insufficient evidence. Supreme Court denied the charge-down request. The jury found defendant guilty of criminal possession of a controlled substance in the first degree and acquitted him of the other two charges; Crawford was convicted of all three counts in the indictment.

After the verdict but prior to sentencing, defendant sought various relief in a written CPL 330.30 motion. Supreme Court issued a decision setting aside the verdict on the basis that it had erroneously denied defendant’s mid-trial CPL 290.10 motion. Considering only the evidence adduced by the People in their case-in-chief, the court ruled that the proof was insufficient to establish defendant’s constructive possession of the contraband in the apartment.

On the People’s appeal, the Appellate Division reversed and reinstated the conviction, finding the trial court erred in revisiting its denial of defendant’s CPL 290.10 motion and in considering only the People’s proof in setting aside the verdict (see, 278 AD2d 849). The Appellate Division concluded defendant waived review of the CPL 290.10 determination by testifying and calling witnesses on his behalf and opened himself to the possibility that he would, on his own case, fill a gap in the prosecution’s proof. A Judge of this Court granted defendant’s application for leave to appeal and we now affirm.

In an effort to justify Supreme Court’s decision to review only the evidence adduced on the People’s case-in-chief, defendant argues that the trial court was adjudicating a reserved CPL 290.10 motion rather than determining a post-trial CPL 330.30 motion. The record belies this contention. The trial transcript reveals that the court did not reserve decision but promptly denied defendant’s CPL 290.10 motion at the close of the People’s case-in-chief. Furthermore, it is evident from the court’s written decision that the court was deciding defendant’s post-trial CPL 330.30 motion when it set aside the guilty verdict.

A court adjudicating a CPL 330.30 motion may consider only issues of law which “would require a reversal or modification of the judgment as a matter of law by an appellate court” (CPL 330.30 [1]). Under this statutory standard, an insufficiency argument may not be addressed unless it has been properly preserved for review during the trial (see, People v Carter, 63 NY2d 530). And we have held that “a defendant who does not rest after the court fails to grant a motion to dismiss at the close of the People’s case, proceeds with the risk that he will inadvertently supply a deficiency in the People’s case” (see, People v Kirkpatrick, 32 NY2d 17, 21, citing People v Corbisiero, 290 NY 191; People v Farina, 290 NY 272; People v Trotta, 30 AD2d 562). Thus, a defendant who presents evidence after a court has declined to grant a trial motion to dismiss made at the close of the People’s case waives subsequent review of that determination. Consistent with the overall truth-seeking function of a jury trial, the rationale underlying this rule is that a reviewing court should not disturb a guilty verdict by reversing a judgment based on insufficient evidence without taking into account all of the evidence the jury considered in reaching that verdict, including proof adduced by the defense.

Here, in addressing the CPL 330.30 motion, Supreme Court reconsidered its prior determination denying defendant’s motion to dismiss at the close of the People’s case. Because defendant waived review of the mid-trial decision by testifying himself and presenting the testimony of other witnesses (see, People v Kirkpatrick, 32 NY2d at 21), this was not an issue of law that could properly be adjudicated in a CPL 330.30 motion. As the trial court lacked jurisdiction to address the sufficiency of the People’s case-in-chief in the context of the CPL 330.30 motion, and this issue was the basis for its decision to set aside the guilty verdict, reversal of that decision was warranted. We, therefore, affirm the order of the Appellate Division reversing the trial court’s CPL 330.30 determination and reinstating the guilty verdict.

The dissent concludes that the conviction should not have been reinstated because, viewing the evidence at trial in its entirety, the People failed to establish defendant’s guilt beyond a reasonable doubt. Defendant has not raised this issue in this Court, nor was it preserved for review at trial in the absence of a motion to dismiss at the close of all the evidence. While the dissent suggests this Court is empowered to conduct a sua sponte review of the evidence supporting a conviction based on CPL 300.30 (1) and 300.40, we have repeatedly held that an indictment may be dismissed due to insufficient evidence only where the sufficiency issues pursued on appeal were preserved by a motion to dismiss at trial (see, People v Gray, 86 NY2d 10; People v Lawrence, 85 NY2d 1002). Indeed, “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” (People v Gray, 86 NY2d at 19). The CPL provisions on which the dissent relies concern the powers and obligations of a trial court before a case is submitted to the jury (see, CPL 300.30 [1]; 300.40). They neither address nor enlarge this Court’s appellate jurisdiction.

If the issues addressed by the dissent were before us, our analysis would be limited to a review of the sufficiency of the evidence. It is well settled that, even in circumstantial evidence cases, the standard for appellate review of legal sufficiency issues is “whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People” (People v Williams, 84 NY2d 925, 926; see, People v Cabey, 85 NY2d 417, 421; see generally, People v Contes, 60 NY2d 620, 621, quoting Jackson v Virginia, 443 US 307, 319). In addition to erroneously evaluating the evidence by employing the heightened circumstantial evidence analysis which is reserved exclusively to the trier of fact (see, People v Ficarrota, 91 NY2d 244, 248-249; People v Williams, supra), the dissent credits the testimony adduced by the defense and fails to mention some of the inculpatory evidence presented at trial, thereby impermissibly reassessing the overall persuasiveness of the proof (see, People v Taylor, 94 NY2d 910).

The order of the Appellate Division should be affirmed.

Smith, J.

(dissenting). Because I believe that the evidence is insufficient to convict the defendant and that the People did not prove defendant’s guilt beyond a reasonable doubt, I dissent.

Defendant was found guilty of criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]). He was acquitted of two other counts in the indictment charging him with criminal possession of a controlled substance in the third degree (Penal Law § 220.16) and criminally using drug paraphernalia in the second degree (Penal Law § 220.50 [3]).

The evidence was that the defendant leased an apartment in a Syracuse housing project. On December 1, 1998, a fire occurred in the apartment below that leased by the defendant. When the firefighters entered defendant’s empty apartment to see if the fire had spread, they found what appeared to be drugs and drug paraphernalia. The police were summoned and a search warrant obtained. Drugs were found in a coat in a bedroom closet and in a hall closet.

On the People’s case, a lease compliance supervisor testified that defendant began living in the housing complex on March 12, 1998. No subleasing was allowed under the lease agreement. She further testified that defendant asked for duplicate keys on four different occasions. On two separate occasions, he received a duplicate key for the outside door of the building. On another occasion, he received duplicate keys for both the outside door and for his own apartment. On December 1, 1998, defendant received another duplicate key for his own apartment. On that same date, around 12:11 p.m., defendant filed a form indicating that he was terminating the lease immediately. Another witness testified that in the kitchen he found a Time-Warner cable bill addressed to the defendant. Another witness testified to finding in a shoe box on the bathroom floor a postcard addressed to defendant.

At the close of the People’s case, defendant moved, pursuant to CPL 290.10, for a trial order of dismissal on the grounds that the evidence was not legally sufficient to establish defendant committed criminal possession of a controlled substance in the first degree. The court denied the motion "at this time.”

Defendant testified that he had moved into the apartment in March 1998. In April, a cousin moved in with him, but the defendant asked his cousin to leave the apartment after three weeks following an argument. Defendant testified further that around May 19, 1998, without the required agreement of the Syracuse Housing Authority, he sublet his apartment to someone else and moved out of the apartment, returning only to collect rent from the subtenant. That person moved out of the apartment, and it was rented to another person, the codefendant here. The defendant’s testimony that he had moved out of the apartment was confirmed by several witnesses, including two friends, his fiancée and his mother.

On the day of the fire, defendant had surrendered the lease to the Syracuse Housing Authority. He had also visited the apartment on that morning seeking rent from the codefendant. He testified that he spoke to the codefendant from outside the bedroom where the codefendant was sleeping.

At the close of the defendant’s case, the trial court immediately held a conference concerning the charge to the jury and did not ask if there were any motions. The defendant did not move for a trial order of dismissal pursuant to CPL 290.10. He did, however, during the charge conference, ask that the charge be reduced. Subsequent to the jury’s verdict, defendant moved to set aside the guilty verdict pursuant to CPL 330.30 (1). He contended that the evidence was legally insufficient to find him guilty. The trial court set aside the verdict on the grounds that the evidence was insufficient to convict the defendant of criminal possession of a controlled substance in the first degree. The Appellate Division reversed and reinstated the verdict, concluding that after examining all of the evidence, it was legally sufficient to convict defendant.

On this appeal, defendant argues that the trial court properly set aside the verdict pursuant to CPL 290.10 and properly limited its decision to the People’s direct case. The People contend that viewing all of the evidence, it was legally sufficient to find the defendant guilty beyond a reasonable doubt, and the Appellate Division properly reinstated the guilty verdict.

At the outset, it is necessary to review what the trial court did at the time the CPL 330.30 motion was made. The court concluded that it made a mistake when it denied defendant’s motion for a trial order of dismissal at the close of the People’s case. It then proceeded to reexamine the evidence at the conclusion of the People’s case and concluded that it was insufficient as to defendant’s knowledge of and control over the cocaine in a jacket in the bedroom.

This is a circumstantial evidence case. The jury was so instructed and was further instructed that the evidence had to indicate beyond a reasonable doubt that defendant had constructive knowledge not only of the cocaine in the hall closet but also of the cocaine in a jacket in a bedroom closet. It was further instructed that the evidence had to be consistent only with the guilt of the defendant and could not be consistent with both guilt and innocence.

When the trial court denied defendant’s motion for a trial order of dismissal, it stated that it was denying the motion “at this time.” In its decision granting defendant’s motion to set aside the verdict, the court stated that it had an obligation to revisit the issue of legally sufficient trial evidence in accordance with CPL 300.30 (1) and 300.40. The court concluded that defendant “was forced to defend against a particular count for which there was no legally sufficient trial evidence” and was forced to defend against additional proof introduced by his codefendant. Having concluded that it made a mistake when it denied defendant’s motion for a trial order of dismissal at the close of the People’s case, the court considered only the People’s evidence on the CPL 330.30 motion.

Independent of any motion by the defendant, a trial court has an obligation to give a jury only those counts of an indictment for which there is legally sufficient evidence. Thus, CPL 300.30 (1) states in part, ‘When the court ‘submits a count,’ it must, at the least, submit the offense charged therein if such is supported by legally sufficient trial evidence, or if it is not, the greatest lesser included offense which is supported by legally sufficient trial evidence.” CPL 300.40 states, “The court may submit to the jury only those counts of an indictment remaining therein at the time of its charge which are supported by legally sufficient trial evidence, and every count not so supported should be dismissed by a trial order of dismissal.” Nothing in these two sections prohibits a trial court, on its own motion, from visiting or revisiting the issue of legally sufficient evidence.

In People v Carter (63 NY2d 530, 536-537), this Court stated:

“The power granted a Trial Judge by CPL 330.30 (subd 1) to set aside a verdict when reversal as a matter of law by an appellate court would be required is, as concerns proof of guilt, therefore, normally limited to a determination that the trial evidence was not legally sufficient to establish the defendant’s guilt of an offense of which he was convicted (CPL 470.15, subd 4, par [b]). Additionally, even though the evidence meets the statutory test for legal sufficiency (CPL 70.10, subd 1), there are instances in which an appellate court can decide that the evidence is inadequate as a matter of law to prove the defendant’s guilt beyond a reasonable doubt (see, e.g., People v Reed, 40 NY2d 204, 206-209 [testimony of sole witness essentially exculpatory]). Thus, Carter’s conviction could have been set aside under CPL 330.30 only if based upon insufficient evidence or evidence which as a matter of law was inadequate to prove guilt beyond a reasonable doubt.”

An argument by defendant that the evidence is insufficient must be preserved by a proper motion or statement (People v Gray, 86 NY2d 10). There are two bases of preservation here. First, it is clear that defendant raised the issue of the sufficiency of the evidence at the end of the People’s case. He could have and should have raised it again at the end of the whole case. He did not. Since defendant raised the sufficiency issue at the close of the People’s case, he can raise it again on an appeal (CPL 470.05). The fact that defendant did not raise the sufficiency issue at the close of defendant’s case does not mean that the sufficiency issue is not before us. When defendant puts on a case, it means that the trial court, as well as the reviewing court, may look at all of the evidence when it determines whether the evidence is legally sufficient. This is all that People v Kirkpatrick (32 NY2d 17) stands for on the issue of the sufficiency of the evidence. Second, granting that defendant, by putting on a case, “proceeds with the risk that he will inadvertently supply a deficiency in the People’s case” (People v Kirkpatrick, id., at 21), the issue of whether all of the evidence was legally sufficient to convict the defendant is before us. The People argued before the Appellate Division that their proof was legally sufficient. The Appellate Division, viewing the whole case, stated, “[W]e conclude that the conviction is supported by legally sufficient evidence.” (278 AD2d 850-851.) The People have argued the sufficiency of the evidence in their brief submitted to this Court. The issue of whether the evidence was legally sufficient beyond a reasonable doubt is thus squarely before us.

Viewing all of the evidence in the light most favorable to the People, my assessment is that the evidence to convict defendant is legally insufficient to prove defendant’s guilt beyond a reasonable doubt. It should be emphasized that the defendant here was not charged with acting in concert with the codefendant. Thus, even though both were tried together, each defendant was entitled to an assessment of the evidence as to him. Here, the evidence was insufficient beyond a reasonable doubt to prove that defendant knew of, constructively possessed or had control over the cocaine in a jacket in the bedroom closet (People v Manini, 79 NY2d 561, 573-575).

Accordingly, I dissent.

Chief Judge Kaye and Judges Levine, Ciparick, Wesley and Rosenblatt concur with Judge Graffeo; Judge Smith dissents in a separate opinion.

Order affirmed. 
      
       The contraband was found in two locations in the one-bedroom apartment: 0.61 ounces of cocaine and drug paraphernalia were discovered in a hall pantry while the money and 13.65 ounces of cocaine were discovered in the bedroom. Although the trial court indicated in its post-verdict decision that the first degree offense related solely to the cocaine found in the bedroom, this assertion is not supported by the trial record. The indictment did not differentiate between the drugs discovered in the two locations. Rather, the cocaine was aggregated in the first count of the indictment— criminal possession of a controlled substance in the first degree, the offense of which the jury convicted defendant. Moreover, the trial court did not reference either location when it charged the jury on this offense, nor did defendant invite the jury to draw such a distinction.
     
      
       The decision of the trial court on defendant’s CPL 330.30 motion states, “The first count of the indictment charged the defendant with Criminal Possession of a Controlled Substance in the First Degree in violation of Penal Law § 220.21 (1) and alleged that he possessed more than four ounces of cocaine found in the bedroom closet in a jacket pocket. The second count charged the defendant with Criminal Possession of a Controlled Substance in the Third Degree under the ‘intent to sell’ provision of Penal Law § 220.16 (1) and was based upon cocaine in a hallway closet as well as the sheer weight of the cocaine in the bedroom closet. The third count charged the defendant with Criminally Using Drug Paraphernalia in the Second Degree in violation of CPL § 220.50 (3).” Immediately after the court discharged the jury, defendant argued that the verdict was repugnant in that both the charge for which defendant had been acquitted and the charge for which he was convicted required knowledge and control. The members of the jury had already departed the courthouse and could not be called back.
     