People v. Hector Santiago: The Court of Appeals clarifies applicability of circumstantial evidence charge.

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by Soma Sengupta

Hector Santiago was in the front passenger seat of a minivan when it was pulled over during a drug surveillance operation. A third person, the surveillance target, was in the rear seat. Codefendant Andy Alba was the owner and driver of the minivan. After a search in which the front passenger floor mat and carpeting was removed, police discovered a brick of cocaine hidden in a locked compartment under the mat.

At trial, the court instructed the jury on constructive possession (a showing that a defendant exercised dominion and control over the place where contraband was seized or over the person who actually possessed the property means possession) and the automobile presumption (PL §220.25: “The presence of a dangerous drug in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such drug was found”). The court denied Santiago’s request for a circumstantial evidence charge, which is “the facts from which the inference of the defendant’s guilt is drawn must be established with certainty — they must be inconsistent with his innocence and must exclude to a moral certainty every other reasonable hypothesis”‘. Santiago was convicted of criminal possession of a controlled substance in the first degree, and the Appellate Division affirmed, noting that the court properly instructed the jury on constructive possession theory and the automobile presumption “and there was no need for the court to give a circumstantial evidence charge as well”.

Santiago had stipulated that the cocaine weighed more than eight ounces. According to the People, “a circumstantial evidence charge was not required because there was direct proof of several elements of the crime, including the nature and weight of the drugs, and defendant’s immediate proximity to them”, as well as of Santiago’s identity. People’s Response at 19. Moreover, the circumstantial evidence charge’s requirement that the inferences “must be inconsistent with his innocence and must exclude to a moral certainty every other reasonable hypothesis” was met because “[t]he judge specifically instructed the jurors that an inference is a conclusion that follows “naturally and logically” from direct facts they chose to accept”. Id at 20. The People asserted further support for their contention that the charge was unmerited because the court explained that “if the jurors determined that the sky was blue after hearing direct testimony that such was the case, they could infer, without any further testimony, that the sun was out” and “the jury need not be deterred if contrary, but rare, examples existed” and further, “that that the jurors need not be worried that at the “dawn of history along the Nile,” there may have been a day where the sky was blue but the sun was “nowhere to be seen”. According to the People, that “every other reasonable hypothesis” must be excluded was made clear to the jury because “the jury was made aware that any facts that it inferred had to be tightly and logically related to the underlying, directly proven facts” by Justice McLaughlin’s Nile example.

In oral arguments before the Court of Appeals, ADA Fisch Cohen clarified the People’s interpretation of these laws. Asked by Judge Lippman “Counsel, why isn’t the automobile presumption just obviously – – – by nature it’s an inference. Why shouldn’t you be entitled to the charge?” Ms. Cohen responded “Because when you have a presumption, both the legislature and this court has already determined that there was a reasonably high degree of probability that the fact – – – that the inference flows from the fact”. Apparently, according to the NYDA, the beyond reasonable doubt standard can be replaced by pre-determined “reasonably high degree of probability”. Judge Pigott asked “you’re not saying under no circumstance can you get a circumstantial evidence charge in an automobile presumption case?” Ms. Cohen agreed that was exactly what she was saying. Judge Rivera asked what the claimed “direct evidence” was. Ms. Cohen responded “His feet were on top of the trap which contained a kilogram of cocaine.” Judge Rivera responded “But that’s how you sit in a car.” Judge Smith attempted to clarify the direct v circumstantial evidence question: “I mean, is it not an inference from those facts that you’re asking people to draw that he was in possession of the drugs?” Ms. Cohen: “Yes, to prove beyond a reasonable doubt, there would have to be an inference of knowing possession, but that’s” Judge Smith: “And is inference the mark of circumstantial test – – – of circumstantial evidence?” Judge Rivera: “How is it direct?” Ms. Cohen did not state how it was direct. Instead, she moved on to answer an unasked question: ”Yes, but not every inference requires a specially crafted jury instruction.”

The Court of Appeals unanimously reversed, reiterating that “a “defendant’s request for a circumstantial evidence instruction must be allowed when proof of guilt rests exclusively on circumstantial evidence””. The Court noted that “[i]n this case, the proof connecting defendant to the drugs was wholly circumstantial. Defendant was not the owner or driver of the vehicle, nor was he the target of the surveillance operation, and there was no direct evidence that he was aware of the hidden compartment or that he exercised dominion and control over the concealed cocaine”. The Court further stated that “[c]ontrary to the People’s assertion, proof by direct evidence of the nature and weight of the controlled substance does not render the circumstantial evidence charge unnecessary. The charge is required where, as here, the only proof that defendant committed the crime charged was circumstantial.”