| People v Kims |
| 2012 NY Slip Op 04885 [96 AD3d 1595] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Stanley R.Kims, II, Appellant. |
—[*1] Stanley R. Kims, II, defendant-appellant pro se. Cindy F. Intschert, District Attorney, Watertown (Harmony A. Healy of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedMarch 28, 2011. The judgment convicted defendant, upon a jury verdict, of criminal possessionof a controlled substance in the first degree, criminal possession of a controlled substance in thethird degree, criminal possession of marihuana in the second degree and criminally using drugparaphernalia in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is modified on the law by reversingthose parts convicting defendant of criminal possession of a controlled substance in the firstdegree and criminal possession of a controlled substance in the third degree and as modified thejudgment is affirmed, and a new trial is granted on counts one and two of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, criminal possession of a controlled substance in the first degree (Penal Law §220.21 [1]) and criminal possession of a controlled substance in the third degree (§ 220.16[1]). We agree with defendant that County Court erred in charging the jury with respect to thepresumption contained in Penal Law § 220.25 (2). That presumption, known as the "roompresumption," provides that the presence of, inter alia, a "narcotic drug . . . in openview in a room," under circumstances evincing an intent to sell the drug, "is presumptiveevidence of knowing possession thereof by each and every person in close proximity to suchcontrolled substance at the time such controlled substance was found" (id. [emphasisadded]). Thus, "[w]hen narcotics are found in open view in a room on private premises, everyperson 'in close proximity' to the drugs at the time of discovery is presumed by statute to haveknowingly possessed them" (People v Daniels, 37 NY2d 624, 630-631 [1975]; see People v Coleman, 26 AD3d773, 775 [2006], lv denied 7 NY3d 754 [2006]).
Our inquiry with respect to Penal Law § 220.25 (2) on this appeal turns on theinterpretation of the "close proximity" language of the statute. "Penal statutes 'must be construedaccording to the fair import of their terms to promote justice and effect the objects of the law' "(People v Fraser, 264 AD2d 105, 110 [2000], affd 96 NY2d 318 [2001], certdenied 533 US 951 [2001], [*2]quoting § 5.00; seePeople v Miller, 70 NY2d 903, 906 [1987]), and it is fundamental that in interpreting astatute we should attempt to effectuate the intent of the Legislature (see Majewski vBroadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). The "room presumption"was added to the Penal Law in 1971 (see L 1971, ch 1044) and, according to its drafters,was intended to address situations in which the police execute a search warrant at a suspected "'drug factory' " only to find drugs and drug paraphernalia scattered about the room. "Theoccupants of such 'factories,' who moments before were diluting or packaging the drugs, usuallyproclaim[ed] their innocence and disclaim[ed] ownership of, or any connection with, thematerials spread before them," thus often leaving the police "uncertain as to whom to arrest"(Mem of St Commn of Investigation, Bill Jacket, L 1971, ch 1044, at 4). Moreover, a letter fromthe chairperson of the State Commission of Investigation, which drafted this statutory provision,further explains that the phrase "in close proximity" was included "to remedy a fairly commonsituation wherein police execute a search warrant on premises suspected of being a 'drug factory'and find narcotics in open view in the room," and that "[i]t is also intended to include personswho might, upon the sudden appearance of the police, hide in closets, bathrooms or otherconvenient recesses" (Letter from St Commn of Investigation, Dec. 1, 1971, Bill Jacket, L 1971,ch 1044, at 6-7).
Here, unlike the scenario envisioned by the Legislature, defendant walked out the "front" ofhis apartment, entered his nearby vehicle and was apprehended almost immediately by paroleofficers who were investigating whether he resided at that location. Several minutes later, paroleofficers and police detectives entered defendant's apartment to conduct a warrantless protectivesearch. The officers found another person present in the apartment and discovered a significantamount of cocaine in the rear area of the apartment, and that cocaine was seized in a subsequentsearch conducted pursuant to a search warrant.
Consequently, based on the facts of this case, we conclude that "defendant was not in 'closeproximity to such controlled substance at the time such controlled substance was found' " (People v Edwards, 23 AD3d 1140,1141 [2005], quoting Penal Law § 220.25 [2]). We further conclude that the court's error incharging the presumption cannot be considered harmless inasmuch as there is no way to discernwhether the jury's verdict convicting defendant of criminal possession of a controlled substancein the first degree and criminal possession of a controlled substance in the third degree, i.e., theonly counts with respect to which the presumption was charged, " 'was predicated on the illegallycharged presumption or on a finding of constructive possession irrespective of the presumption' "(id. at 1142, quoting People v Martinez, 83 NY2d 26, 35 [1993], certdenied 511 US 1137 [1994]). We therefore modify the judgment by reversing those partsconvicting defendant of criminal possession of a controlled substance in the first degree andcriminal possession of a controlled substance in the third degree, and we grant a new trial onthose counts of the indictment (see People v Rodriguez, 104 AD2d 832, 834 [1984]).
We respectfully disagree with our dissenting colleague that we should apply the reasoning ofthe First Department in People vAlvarez (8 AD3d 58, 59 [2004], lv denied 3 NY3d 670 [2004]) to the facts ofthis case. In Alvarez, the First Department concluded that the trial court properly chargedthe jury with respect to the room presumption where the defendant was not apprehended in theapartment in question and the police did not see him fleeing therefrom. The trial evidence inAlvarez, however, "clearly warranted" the conclusion that the defendant jumped out ofthe window of the apartment in which the drugs were found, inasmuch as the defendant wasdiscovered injured in the backyard area below the window, and was attempting to flee byclimbing a fence (id.).
Put differently, the defendant in Alvarez, who appears to have been the only occupantof the apartment in which the drugs were located, was found in flight and physically close to a[*3]makeshift exit from that apartment. Here, in contrast to thefacts in Alvarez, defendant was not in flight from the police; he was apprehended in thedriveway outside the apartment several minutes after leaving the apartment in which the drugswere found; and the apartment was occupied by another person. Given the distance in time andspace present here but absent from Alvarez, we respectfully disagree with our dissentingcolleague that Alvarez applies here.
We now turn to defendant's remaining contentions. Contrary to defendant's contention, thecourt's pretrial Molineux ruling does not constitute an abuse of discretion. The evidenceof defendant's prior drug sales and association with drug dealers was probative of "legallyrelevant and material issue[s] before the [jury]" (People v Alvino, 71 NY2d 233, 242[1987]; see People v Satiro, 72 NY2d 821, 822 [1988]; People v Ray, 63 AD3d 1705,1706 [2009], lv denied 13 NY3d 838 [2009]; Prince, Richardson on Evidence §4-510 [Farrell 11th ed]). In addition, " '[t]he limited probative force of . . . evidence[with respect to defendant's escape from custody] is no reason for its exclusion' " (People v Roman, 60 AD3d 1416,1418 [2009], lv denied 12 NY3d 928 [2009], quoting People v Yazum, 13 NY2d302, 304 [1963], rearg denied 15 NY2d 679 [1965]) and, here, the court gave a juryinstruction that conveyed the "weakness [of that evidence] as an indication of guilt of thecrime[s] charged" (Yazum, 13 NY2d at 304). In any event, any error with respect to theMolineux ruling is harmless (seePeople v Baker, 21 AD3d 1435, 1436 [2005], lv denied 6 NY3d 773 [2006];see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). We further conclude that" 'any alleged [prosecutorial] misconduct was not so pervasive or egregious as to deprivedefendant of a fair trial' " (People vSzyzskowski, 89 AD3d 1501, 1503 [2011]; see People v Pruchnicki, 74 AD3d 1820, 1822 [2010], lvdenied 15 NY3d 855 [2010]). Contrary to defendant's contention, the court properly refusedto suppress evidence seized from his apartment subsequent to a warrantless protective search(see People v Lasso-Reina, 305 AD2d 121, 122 [2003], lv denied 100 NY2d 595[2003]; see generally People v Bost, 264 AD2d 425, 426 [1999]).
Defendant contends in his pro se supplemental brief that the evidence seized from his vehicleand apartment should be suppressed because the parole officers who stopped him in his vehicleacted as conduits for, or agents of, the police. Defendant sets forth a similar contention withrespect to the evidence seized from his apartment in his main brief. Even assuming, arguendo,that defendant initially preserved those contentions for our review (see generally People vMendoza, 82 NY2d 415, 428 [1993]), we conclude that he thereafter abandoned them (see People v Adams, 90 AD3d1508, 1509 [2011], lv denied 18 NY3d 954 [2012]; People v Anderson, 52 AD3d1320, 1320-1321 [2008], lv denied 11 NY3d 733 [2008]). Defendant's furthercontention in his pro se supplemental brief that he was denied his right of confrontation withrespect to the testimony of a police detective is unpreserved for our review (see People v Davis, 87 AD3d1332, 1334-1335 [2011], lv denied 18 NY3d 858 [2011], reconsiderationdenied 18 NY3d 956 [2012]). In any event, that contention lacks merit. The detectivetestified that he learned from a confidential informant that defendant's residence might be used asa "stash house," i.e., a place to keep drugs and money and to package drugs for sale. We concludethat such testimony was properly admitted in evidence for the purpose of explaining the actionsof the police and the sequence of events leading to defendant's arrest (see People v Davis, 23 AD3d 833,835 [2005], lv denied 6 NY3d 811 [2006]; see also People v Tosca, 98 NY2d660, 661 [2002]). Finally, we conclude that the court properly admitted in evidence the drugs atissue despite the alleged gaps in the chain of custody with respect thereto. "The police providedsufficient assurances of the identity and unchanged condition of the evidence . . . ,and thus any alleged gaps in the chain of custody went to the weight of the evidence, not itsadmissibility" (People v Kennedy,78 AD3d 1477, 1478 [2010], lv denied 16 NY3d 798 [2011]; see People v Hawkins, 11 NY3d484, 494 [2008]).
All concur except Scudder, P.J., who dissents in part and votes to affirm in the followingmemorandum.
Scudder, P.J. (dissenting in part). I respectfully dissent in part. I disagree with the majoritythat County Court erred in charging the jury with respect to the presumption set forth in PenalLaw § 220.25 (2), and I would therefore affirm the judgment in its entirety.[*4]
The record establishes that cocaine and drug packagingparaphernalia were located in plain view in the kitchen of the apartment rented by defendant. Thekitchen was in the rear of the apartment, and the police discovered the contraband approximatelyfive minutes after parole officers observed defendant and another person exit the front door of theapartment, which was located in the living room. Defendant's companion admitted that he hadpurchased drugs from defendant immediately before the two left the apartment together. A thirdperson was in the apartment with defendant and his companion, and that person, i.e., "Chino,"appeared to be asleep on the couch in the living room when the police entered the apartment.While he was detained by police in the driveway, defendant yelled to bystanders, "call Chino, callChino." The record also establishes that the address of defendant's approved residence for parolepurposes was different from the address where the subject contraband was located, and that therewere no beds in the two-bedroom apartment where the contraband was located. In my view, thesefacts support a determination that the apartment defendant rented was used as a "drug factoryoperation" (People v Martinez, 83 NY2d 26, 29 [1993], cert denied 511 US 1137[1994]), and thus that the court properly instructed the jury that it was permitted to considerwhether defendant was in knowing possession of the cocaine at the time it was found.
The court charged the jury that "the presence of a narcotic drug . . . in openview in a room under circumstances evincing an intent . . . to prepare that substancefor sale is presumptive evidence of knowing possession of that substance by each and everyperson in close proximity to it at the time the substance was found . . . ThePeople must prove beyond a reasonable doubt that the cocaine was in open view in a roomand that the circumstances were such as to evince an intent . . . to prepare thecocaine for sale[. If you so find], then you may, but you are not required to, infer from thatfact that each and every person in close proximity to the cocaine at the time it was found was inknowing possession of it" (emphasis added).
In People v Alvarez (8 AD3d58, 59 [2004], lv denied 3 NY3d 670 [2004]), the First Department concluded thatthe trial court properly charged the jury on the presumption contained in Penal Law §220.25 (2) where the defendant was found outside of the apartment in which the drugs werelocated and the police deduced that he had jumped out of a window. In my view, we should applythe reasoning of the Alvarez Court to this case. The cocaine was "in open view in a room. . . under circumstances evincing an intent to unlawfully . . . packageor otherwise prepare [it] for sale" (§ 220.25 [2]; cf. Martinez, 83 NY2d at 34 n 3).Further, approximately five minutes before the cocaine was found by the police, defendant wasobserved leaving the apartment that he rented but may not have used as his residence, and he wasin the company of a person who admitted that he had purchased cocaine from defendant. Thus,the court properly determined that the jury could find that defendant was in close proximity to thecocaine when he was apprehended in his car in the driveway (see Alvarez, 8 AD3d at59).
The majority's reliance on People vEdwards (23 AD3d 1140, 1141 [2005]) is misplaced. In Edwards, the bag ofcocaine was not found in a room of the subject apartment but instead was found on the bottomstep of a stairway leading to the apartment, and defendant was found in the rear of the apartment.We concluded that "the controlled substance was not 'in open view in a room' and that, in anyevent, defendant was not in 'close proximity to such controlled substance at the time suchcontrolled substance was found' " (id. at 1141). If defendant herein had not been observedleaving the apartment less than five minutes before the cocaine was found, I would agree with themajority that Edwards is analogous. However, in my view, the facts presented heresupport the determination that defendant was in close proximity to the controlled substance at thetime it was found and thus that the court properly instructed the jury that it was entitled to inferthat defendant was in knowing possession of the cocaine. Present—Scudder, P.J., Centra,Fahey, Peradotto and Sconiers, JJ.