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County Court, Niagara County, September 17, 2004
APPEARANCES OF COUNSEL
Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP (Michael P. Stuermer of counsel), for defendant. Matthew J. Murphy, III, District Attorney (Michael W. McNelis of counsel), for plaintiff.
OPINION OF THE COURT
Peter L. Broderick, J.
The defendant has made a motion requesting this court to review the sufficiency of the grand jury minutes pursuant to sections 210.20 and 210.30 of the Criminal Procedure Law.
The question before this court is whether the facts before the grand jury are sufficient to establish the offenses charged or any lesser-included offenses. The test is whether the evidence, unexplained and uncontradicted, would warrant a conviction by a trial jury.
Upon a review of the grand jury minutes, the evidence presented is sufficient to support count two of the indictment (charging criminal possession of a controlled substance in the seventh degree for constructive possession of psilocin). The motion to dismiss or reduce this count is denied. [*2]
Count one of the indictment charges the class C felony of criminal possession of marihuana in the first degree (for the alleged constructive possession of nearly 19 pounds of marihuana).
A review of the grand jury minutes, together with the exhibits introduced into evidence before that body, demonstrates to this court that the Cheektowaga police attempted to follow an evidentiary trail obtained from a confidential informant. That trail led to one Charles McGill here in Niagara County. The Cheektowaga authorities then coordinated with the Niagara County Drug Task Force and obtained a series of court warrants, including one authorizing the search of McGill's automobile and person. While executing that warrant, sitting in the passenger front seat of McGill's automobile, they discovered this defendant, Andrew Renaud. There is no indication in the grand jury presentation that the authorities in either jurisdiction had ever before heard of Andrew Renaud, nor is there any evidence to suggest that Andrew Renaud had any criminal history of drug use or trafficking.
Upon searching the occupants and the vehicle, the police discovered no controlled substances on either person, but found a considerable quantity otherwise in the vehicle. On the backseat was a duffle bag containing approximately 17 pounds of marihuana. On the floor in the backseat area was another bag containing approximately two additional pounds of marihuana. In the front seat, on the floor in the passenger side (where Renaud was sitting), they discovered a yellow backpack containing a small quantity of marihuana, the psilocin, and a "metal grinding iron."
Andrew Renaud made no admissions to any police officer. McGill, on the other hand, talked freely with the police and, ultimately, crafted a cooperation agreement with the authorities in exchange for lenient treatment. McGill indicated that Andrew's brother, Brian Renaud, was the apparent mastermind of the conspiracy. Brian was trying to get a delivery (the 17 pounds) to his coconspirator in Pittsburgh, a third brother named Tim Renaud. Andrew was supposed to make the delivery, but was experiencing car problems. While McGill (a long-time family friend) was visiting with Andrew, Brian scolded Andrew and advised him to see if McGill could provide the transportation. McGill contended that the brothers Renaud told him of the plot and he agreed to act as the wheelman for the delivery, in exchange for a small piece of the marihuana (the two pounds on the backseat floor) and approximately $500 in cash. McGill testified that Brian loaded the duffle bags of marihuana into his car and he and Andrew were in the process of leaving Western New York when the police stopped them.
During the initial grand jury presentation, the prosecution did not call McGill to testify. Instead, they chose to indict based solely upon the statutory presumption of possession attributable to all persons present in an automobile found in Penal Law

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