New York Law Review

Tag: Drug factory presumption

  • People v. Hogan, — N.E.3d –, 2016 NY Slip Op 01159 (2016): Drug Factory Presumption and the Scope of Effective Assistance of Counsel

    People v. Hogan, — N.E.3d –, 2016 NY Slip Op 01159 (2016)

    The drug factory presumption applies when circumstances suggest an intent to prepare drugs for sale, and a defendant’s decision to testify before a grand jury is a strategic one, thus falling under the purview of counsel.

    Summary

    In this case, the New York Court of Appeals addressed two key issues: the applicability of the drug factory presumption and the scope of effective assistance of counsel. The court held that the drug factory presumption was properly applied, given the circumstances. Furthermore, the court determined that the decision of whether a defendant should testify before a grand jury is a strategic decision that lies with defense counsel. The court affirmed the Appellate Division’s decision, upholding the defendant’s conviction.

    Facts

    Police executed a search warrant at the defendant’s former girlfriend’s apartment. They found packaged and loose cocaine, baggies, and a razor blade in open view in the kitchen. The prosecution sent notice to defense counsel indicating that the case would be presented to a grand jury. Defense counsel decided that the defendant would not testify before the grand jury and did not discuss the matter with the defendant. The grand jury indicted the defendant. At trial, the court considered the drug factory presumption. The defendant was convicted of drug possession charges.

    Procedural History

    The defendant moved to dismiss the indictment, which was denied. The defendant was convicted in a non-jury trial. The Appellate Division unanimously affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the drug factory presumption was properly applied under the circumstances of the case.

    2. Whether the defendant was denied effective assistance of counsel when counsel decided not to have him testify before the grand jury without consulting him.

    Holding

    1. Yes, because the circumstances, including the presence of packaged and loose drugs, paraphernalia, and a razor blade in plain view, supported an inference of preparation for sale.

    2. No, because the decision of whether to have a defendant testify before a grand jury is a strategic decision within counsel’s authority.

    Court’s Reasoning

    The court found that the drug factory presumption, as defined in Penal Law § 220.25 (2), was applicable. The court explained that the statute does not require a specific intent to prepare drugs for sale, but merely that the circumstances evince such an intent. The court cited previous cases where the presumption was properly applied when drugs and paraphernalia were found in plain view. The court found that the evidence presented at trial, including the presence of packaged and loose drugs and a razor blade, supported an inference that drugs were being prepared for sale.

    Regarding the ineffective assistance of counsel claim, the court held that the decision of whether a defendant should testify before a grand jury is a strategic decision reserved for counsel. The court noted that fundamental decisions, such as pleading guilty or waiving a jury trial, belong to the defendant, but strategic decisions, such as the selection of jurors or whether to seek a jury charge on lesser-included offenses, are within counsel’s purview. Because the decision not to have the defendant testify was a strategic one, and because the counsel stated his strategy on the record and defendant showed no prejudice, the court found that the defendant had not been denied effective assistance of counsel.

    Practical Implications

    This case reinforces the principle that the drug factory presumption may be applied when circumstances indicate preparation for sale, even without explicit evidence of intent. The case provides guidance for applying the presumption. Defense attorneys must understand the scope of the presumption and the types of evidence that will trigger its application. The decision also clarifies the division of authority between counsel and the client in criminal cases. It establishes that the decision of whether a defendant should testify before a grand jury is a matter of legal strategy, and that defense counsel has the authority to make that decision.

  • People v. Kims, II, 24 N.Y.3d 421 (2014): Limits of the ‘Drug Factory’ Presumption

    People v. Kims, II, 24 N.Y.3d 421 (2014)

    The “drug factory” presumption of Penal Law § 220.25(2), which allows jurors to infer possession based on proximity to drugs in plain view, does not apply when a defendant is apprehended outside the premises and not in immediate flight.

    Summary

    Stanley Kims was convicted of drug possession charges. The prosecution relied on the “drug factory” presumption, arguing Kims was in close proximity to drugs found in his apartment even though he was arrested outside. The New York Court of Appeals held that the presumption was improperly applied because Kims was not in “close proximity” to the drugs at the time of his arrest, as he was outside the apartment and not fleeing. The Court reversed the convictions for criminal possession of a controlled substance in the first and third degrees, ordering a new trial on those counts, but affirmed the remaining convictions.

    Facts

    Detective McNitt received information that Kims was operating a drug stash house. Kims’ parole officer, Glennon, visited Kims’ residence and saw Kims and his cousin, Sawyer, exit the building. Glennon called out to Kims, who then reversed his car. Glennon observed Kims reach into the vehicle’s console area. Officers drew their guns and ordered Kims and Sawyer to exit the vehicle. Drugs were found on Sawyer and in the car. After Kims’ arrest, officers conducted a protective sweep of the apartment and found drugs and drug paraphernalia in open view. A search warrant later revealed more drugs and cash.

    Procedural History

    Kims was indicted on drug possession charges. The trial court denied Kims’ motion to suppress the evidence found in the apartment. The jury convicted Kims on all counts. The Appellate Division modified the judgment, reversing the convictions for criminal possession of a controlled substance in the first and third degrees and ordering a new trial on those counts, while affirming the remaining convictions. Both the People and Kims were granted leave to appeal.

    Issue(s)

    1. Whether the trial court erred in charging the jury on the presumption of knowing possession under Penal Law § 220.25(2) when the defendant was apprehended outside the premises.

    2. Whether, if the charge was given in error, the error was harmless.

    Holding

    1. Yes, because the defendant was not in “close proximity” to the drugs as required by Penal Law § 220.25(2) when he was apprehended outside the premises and not in immediate flight.

    2. No, because it is impossible to determine whether the jury based its verdict on the improper presumption or the alternative charge of constructive possession.

    Court’s Reasoning

    The Court reasoned that Penal Law § 220.25(2) allows a jury to presume knowing possession when a defendant is in “close proximity” to drugs in open view, under circumstances evincing a drug sale operation. The purpose of this “drug factory” presumption is to assist police in identifying culpable individuals involved in a drug business within premises being used for drug operations. The Court emphasized that “close proximity” requires the defendant to be sufficiently near the drugs to suggest participation in the drug operation, and that structural barriers may be a factor. However, once a defendant has left the premises, the justification for the presumption weakens, unless the defendant is caught in immediate flight. In Kims’ case, he was outside the premises, had entered his vehicle, and was not fleeing when apprehended. Therefore, the “drug factory” presumption did not apply. The Court applied the precedent set in People v. Martinez, stating that when a jury renders a general verdict and it’s unclear whether the verdict was based on an erroneous charge (the drug factory presumption) or a proper one (constructive possession), the error isn’t harmless. Because the jury could have based its verdict on the improper presumption, a new trial was ordered. The Court further held that while references to Kims’ alleged gang affiliation were improperly admitted, the error was harmless due to the overwhelming evidence of guilt. Additionally, the protective sweep was justified by exigent circumstances. The Court found Kims’ other claims to be without merit or unpreserved.

  • People v. Mclean, 81 N.Y.2d 409 (1993): Harmless Error Analysis and Improper Jury Instructions

    People v. Mclean, 81 N.Y.2d 409 (1993)

    When a jury is instructed on a theory of criminal liability unsupported by sufficient evidence, a general guilty verdict will be reversed unless the error is harmless; harmless error analysis applies unless the error involves an illegal theory leading to an unconstitutional conviction.

    Summary

    Mclean was convicted of drug offenses. The trial court instructed the jury on the “drug factory” presumption, allowing them to infer knowing possession based on the presence of drugs in open view under circumstances indicating intent to prepare them for sale. The New York Court of Appeals reversed, finding insufficient evidence to support the drug factory presumption because the drugs were concealed. The court held that submitting this unsupported theory was not harmless error because the jury returned a general verdict, making it impossible to know if they relied on the presumption. The dissent argued that the error was an evidentiary charge subject to harmless error analysis and that the evidence of possession was overwhelming. The dissent also cited that the error was not an illegal ground for conviction in the sense of Griffin v. United States.

    Facts

    Police raided an apartment and found Mclean and a co-defendant present. Drugs were discovered concealed behind a couch. The prosecution presented evidence of prior drug sales observed at the apartment. At trial, the judge instructed the jury on the “drug factory presumption,” stating the jury could infer knowing possession of the drugs based on their being in open view under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale. Mclean was convicted of drug possession and sales.

    Procedural History

    The trial court convicted Mclean of drug possession and sales. The Appellate Division affirmed. The New York Court of Appeals reversed the order of the Appellate Division, holding that the trial court erred in instructing the jury on the drug factory presumption and that the error was not harmless.

    Issue(s)

    1. Whether the trial court erred in instructing the jury on the “drug factory” presumption of knowing possession of a controlled substance?
    2. Whether submitting such an unsupported theory to the jury was reversible error, or subject to harmless error analysis?

    Holding

    1. Yes, because there was insufficient evidence to support the drug factory presumption since the drugs were not in open view.
    2. Yes, reversible error, because the jury returned a general verdict, and it’s impossible to determine if they relied on the presumption.

    Court’s Reasoning

    The Court reasoned that charging the jury on the “drug factory” presumption when the drugs were concealed was error. Citing Griffin v. United States, 502 U.S. 46 (1991), the Court distinguished between submitting a theory of liability that is unconstitutional or illegal and submitting one that is merely unsupported by sufficient evidence. The Court stated that because the jury returned a general verdict, it was impossible to determine whether they relied on the improperly charged presumption. The Court distinguished this case from People v. Grega, 72 N.Y.2d 489 (1988), where a similar error was deemed harmless. Here, there was some evidence from which the jury might have applied the drug factory presumption, making it impossible to say the error was harmless. The dissent argued that the drug factory presumption is merely an evidentiary charge, not a theory of liability, and should be subject to harmless error analysis like any other erroneous evidentiary ruling. The dissent also emphasized the overwhelming evidence of Mclean’s possession and control over the drugs. The dissent cited Turner v. United States, 396 U.S. 398 (1970), as properly applying harmless error analysis to the claim that it was error to charge a statutory presumption of criminal distribution from the defendant’s possession of heroin, stating, “So, too, the instruction on the presumption is beside the point, since even if invalid, it was harmless error; the jury must have believed the possession evidence which in itself established a distribution barred by the statute”.