People v. Russo, 41 N.Y.2d 1067 (1977)

When a defendant is seen in actual possession of an envelope, there is a presumption that they had knowledge of its character and contents, especially when coupled with other evidence suggesting involvement in gambling activities.

Summary

Joseph Russo was observed handing the defendant an envelope; upon seeing police officers, Russo snatched the envelope back and threw it on the floor. The envelope contained gambling records. The defendant was convicted of possessing and promoting gambling. The New York Court of Appeals affirmed the conviction, holding that the defendant’s possession of the envelope created a presumption that he knew its contents, and the presence of other gambling-related items supported the jury’s conclusion. The Court also addressed the admissibility of police officer testimony after the destruction of their notes, finding no error as there was no indication of intentional destruction to frustrate cross-examination.

Facts

Police officers executing a search warrant in an apartment saw Joseph Russo hand the defendant a white envelope. Upon seeing the officers, Russo took the envelope back and threw it on the floor. The envelope contained gambling records. The apartment was used to conduct a gambling business. The defendant, who did not reside there, was frequently seen entering and leaving the premises on a regular basis. Racing forms and other items associated with gambling were also present in the apartment.

Procedural History

The defendant was charged and convicted of possessing gambling records in the first degree and promoting gambling in the first degree. The defendant appealed, claiming insufficient evidence to establish guilt beyond a reasonable doubt. The New York Court of Appeals affirmed the order.

Issue(s)

1. Whether there was sufficient evidence to establish that the defendant had knowledge of the contents of the envelope containing gambling records.

2. Whether there was sufficient evidence to establish that the defendant possessed more than 500 plays or chances on the date of arrest.

3. Whether there was sufficient evidence to prove that the written records the defendant received were “from a person other than a player”.

4. Whether the arresting officers’ testimony should have been excluded because they had destroyed their notes after transferring the information to their reports.

Holding

1. Yes, because the defendant was seen in actual possession of the envelope, creating a presumption that he had knowledge of its character and contents, which was further supported by the circumstances.

2. Yes, because considering all the circumstances, including the gambling business conducted in the apartment, the jury could conclude that the defendant was fully aware of the contents.

3. Yes, because at least one of the slips handed to the defendant was “a collector’s slip”, made by an individual who receives and records bets from players.

4. No, because there was no indication that the officers intentionally destroyed the documents to frustrate the defendant’s right to cross-examination, nor was it established that they had no independent recollection of the circumstances surrounding the arrest.

Court’s Reasoning

The Court reasoned that the defendant’s actual possession of the envelope triggered a statutory presumption under Penal Law § 225.35 that he knew its contents. The Court emphasized the circumstantial evidence further bolstering this presumption, including the gambling operation in the apartment, the defendant’s frequent visits, and the presence of racing forms. Regarding the promoting gambling charge, the court noted that at least one slip was a