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.