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.