The People, Appellant-Respondent,v.Stanley R. Kims, II, Respondent-Appellant.

Brief

N.Y.September 11, 2014

TO BE ARGUED BY MARK C. DAVISON, ESQ. TIME REQUESTED: 15 MINUTES APL-2013-00095 Jefferson County Indictment No. 225-10 STATE OF NEW YORK COURT OF APPEALS _____________________________________________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Appellant-Respondent, -vs- STANLEY R. KIMS, II, Respondent-Appellant. _____________________________________________________________________________________ BRIEF FOR RESPONDENT-APPELLANT ________________________________________________________________ BY: MARK C. DAVISON, ESQ DAVISON LAW OFFICE, PLLC P.O. Box 652 Canandaigua, New York 14424 Tel: (585) 394-5222 Fax: (585) 394-5226 Date: October 14, 2013 Table of Contents Table of Authorities…………………………………………………………1 Questions Presented…………………………………………………………4 Jurisdictional Statement……………………………………………………..5 Statement of Facts…………………………………………………………...8 ARGUMENT POINT ONE: THE TRIAL COURT’S ERROR IN INSTRUCTING THE JURY ON THE ROOM PRESUMPTION, WHEN MR. KIMS WAS NOT INSIDE THE PREMISES WHERE THE DRUGS WERE FOUND, REQUIRED REVERSAL AND A NEW TRIAL …………………………31 POINT TWO: THE TRIAL COURT ERRED IN ITS MOLINEUX RULINGS, AND THEREBY DENIED MR. KIMS HIS RIGHT TO A FAIR TRIAL ………………………………………………………………42 POINT THREE: EVIDENCE FOUND INSIDE THE RESIDENCE ON LERAY STREET SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS SEIZED DURING A WARRANTLESS “PROTECTIVE SWEEP” BY POLICE………………………………………………………………..49 POINT FOUR: THE CONVICTION MUST BE SET ASIDE AND A NEW TRIAL GRANTED BECAUSE OF PROSECUTORIAL MISCONDUCT……………………………………………………………55 CONCLUSION……………………………………………………………59 i 1 TABLE OF AUTHORITIES FEDERAL CASES Bollenbach v United States, 326 US 607 [1946]………………………………….41 Maryland v Buie, 494 US 325 [1990]……………………………………………..49 Ryburn v Huff, 565 US ___, 132 S Ct 987 [2012]………………………………...51 Samson v California, 547 US 843 [2006]…………………………………………54 NEW YORK CASES People v Acevedo, 84 AD3d 1390 [2d Dept 2011], lv denied 17 NY3d 951 [2011]………………………………………………………………………….46, 56 People v Alvarez, 8 AD3d 58 [1st Dept 2004], lv denied 3 NY3d 670 [2004]………………………………………………………………………….33-34 People v Alvino, 71 NY2d 233 [1987]……………………………………………44 People v Arafet, 13 NY3d 460 [2009]………………………………………...44, 48 People v Becoats, 17 NY3d 643 [2011], cert denied 132 S Ct 1970 [2012]……...39 People v Bost, 264 AD2d 425 [2d Dept 1999]………………………………...49-52 People v Boyland, 79 AD3d 1658 [4th Dept 2011], affd 20 NY3d 879 [2012]…...51 People v Bradley, 20 NY3d 128 [2012]…………………………………………..45 People v Bryant, 77 AD2d 603 [2d Dept 1980]……………………………....56, 57 People v Burke, 170 AD2d 1021 [4th Dept 1991], lv denied 77 NY2d 959 [1991]……………………………………………………………………………...57 People v Candelaria, 63 AD2d 85 [1st Dept 1978]……………………………….54 People v Carvajal, 6 NY3d 305 [2005]…………………………………………...37 People v Clements, 37 NY2d 675 [1975], cert denied sub nom Metzger v New York, 425 US 911[1976]……………………………………………………….52-53 People v Coles, 105 AD3d 1360 [4th Dept 2013]…………………………………52 People v Concepcion, 17 NY3d 192 [2011]………………………………………41 People v Daniels, 37 NY2d 624 [1975]……………………………………….37-38 People v Diaz, 108 Misc 2d 213 [S Ct NY County 1981]………………………...32 People v Edwards, 23 AD3d 1140 [4th Dept 2005]……………………………38-39 People v Fineout, 96 AD3d 1601 [4th Dept 2012), lv denied 19 NY3d 1025 [2012]………………………………………………………………………….34-35 People v Fisher, 18 NY3d 964 [2012]…………………………………………6, 58 People v Franklin, 190 AD2d 501 [1st Dept 1993], lv denied 81 NY2d 885 [1993]……………………………………………………………………………...47 2 People v Gadsden, 80 AD2d 508 [1st Dept 1981]………………………………...57 People v Giles, 11 NY3d 495 [2008]……………………………………………..47 People v Giordano, 87 NY2d 441 [1995]………………………………………...39 People v Givans, 45 AD3d 1460 [4th Dept 2007]…………………………………47 People v Harper, 100 AD3d 772 [2d Dept 2012], lv denied 21 NY3d 943 [2013]……………………………………………………………………………...50 People v Hawkins, 300 AD2d 1101 [4th Dept 2002], lv denied 99 NY2d 629 [2003]……………………………………………………………………………...38 People v Hudy, 73 NY2d 40 [1988]………………………………………………44 People v Hunter, 17 NY3d 725 [2011]……………………………………………41 People v Huntley, 43 NY2d 175 [1977]…………………………………………..54 People v Jackson, 40 AD2d 1006 [2d Dept 1972]………………………………..56 People v Kelly, 302 NY 512 [1951]………………………………………………40 People v Kelly, 261 AD2d 133 [1st Dept 1999], lv denied 94 NY2d 824 [1999]…………………………………………………………………………35, 53 People v Kims, 96 AD3d 1595 [4th Dept 2012], lv granted 21 NY3d 913 [2013]………………………………………………...5, 29-30, 33-34, 43, 50-51, 57 People v Knapp, 52 NY2d 689 [1981]……………………………………………53 People v Lasso-Reina, 305 AD2d 121 [1st Dept 2003], lv denied 100 NY2d 595 [2003]………………………………………………………………………….50-51 People v Lewis, 69 NY2d 321 [1987]……………………………………………..47 People v Livingston, 128 AD2d 645 [2d Dept 1987]……………………………..57 People v Maldonado, 189 AD2d 737 [1st Dept 1993], lv denied 81 NY2d 1016 [1993]……………………………………………………………………………...36 People v Martinez, 83 NY2d 26 [1993], cert denied 511 US 1137 [1994]……………………………………………………………………...31, 38-40 People v McAllister, 35 AD3d 300 [1st Dept 2006], lv denied 8 NY3d 925 [2007]……………………………………………………………………………...51 People v McClary, 85 AD3d 1622 [4th Dept 2011]……………………………….55 People v McMillan, 66 AD2d 830 [2d Dept 1978]……………………………….57 People v Miranda, 220 AD2d 218 [1st Dept 1995], lv denied 87 NY2d 849 [1995]……………………………………………………………………………...36 People v Molineux, 168 NY 264 [1901]…………………………………………..44 People v Negron, 91 NY2d 788 [1998]………………………………………32, 37 People v Pagan, 88 AD3d 37 [1st Dept 2011], lv denied 17 NY3d 954 [2011]…..46 People v Pearson, 75 NY2d 1001 [1990]……………………………………...32,36 People v Polk, 84 AD2d 943 [4th Dept 1981]……………………………………..56 People v Resek, 3 NY3d 385 [2004]………………………………………………44 People v Riback, 13 NY3d 416 [2009]……………………………………………..7 3 People v Riddick, 159 AD2d 596 [2d Dept 1990], lv denied 76 NY2d 741 [1990]……………………………………………………………………………...36 People v Rivers, 18 NY3d 222 [2011]…………………………………………….48 People v Santarelli, 49 NY2d 241 [1980], rearg denied 49 NY2d 241 [1980]…..44 People v Santiago, 243 AD2d 328 [1st Dept 1997], lv denied 91 NY2d 879 [1997]……………………………………………………………………………...36 People v Satiro, 72 NY2d 821 [1988]…………………………………………….46 People v Scarola, 71 NY2d 769 [1988]…………………………………………..43 People v Stewart, 92 AD2d 226 [2d Dept 1983]……………………………...46, 56 People v Tejeda, 73 NY2d 958 [1989]………………………………………..32, 36 People v Tillman, 87 NY2d 835 [1995]…………………………………………..47 People v Torres, 68 NY2d 677 [1986]……………………………………………38 People v Uribe, 113 Misc 2d 207 [S Ct NY County 1982]……………………….34 People v Vaughn, 36 AD3d 434 [1st Dept 2007], lv denied 9 NY3d 870 [2007], cert denied 552 US 1284 [2008]……………………………………………………….37 People v Ventimiglia, 52 NY2d 350 [1981]………………………………………44 People v Wheeler, 2 NY3d 370 [2004]……………………………………49-50, 52 STATUTES Criminal Procedure Law 450.90 (1)………………………………………………..5 Criminal Procedure Law 470.35 (1)………………………………………………..5 Penal Law § 220.16 (1)……………………………………………………………..5 Penal Law § 220.21 (1)……………………………………………………………..5 Penal Law § 220.25……………………………........................................................27, 29, 31-34 Penal Law § 220.50………………………………………………………………...5 Penal Law § 221.25………………………………………………………………...5 4 QUESTIONS PRESENTED 1. Did the trial court improperly instruct the jury on the “room presumption,” when Mr. Kims was apprehended in his vehicle outside the premises? The Appellate Division: Yes The Trial Court: No. 2. Did the trial court err in its Molineux rulings, and thereby deny Mr. Kims his right to a fair trial? The Appellate Division: No. The Trial Court: No. 3. Should evidence found on the premises be suppressed because law enforcement officers conducted an improper “protective sweep” before a warrant was obtained? The Appellate Division: No. The Trial Court: No. 4. Should Mr. Kims’ conviction be set aside because of prosecutorial misconduct? The Appellate Division: No The Trial Court: No. 5 JURISDICTIONAL STATEMENT These appeals are from a final Memorandum and Order of the Appellate Division, Fourth Department entered June 15, 2012 (reported at 96 AD3d 1595), that modified on the law a judgment of Jefferson County Court (Kim H. Martusewicz, J.) rendered March 28, 2011 convicting defendant Stanley R. Kims, II upon a jury verdict of criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]), criminal possession of a controlled substance in the third degree (§ 220.16 [1]), criminal possession of marihuana in the second degree (§ 221.25), and criminally using drug paraphernalia in the second degree (§ 220.50) (two counts), by reversing those parts convicting him of criminal possession of a controlled substance in the first and third degrees and as modified affirming the judgment, and granting a new trial on counts one and two of the indictment. This Court (Smith, J.) granted both the People’s and Mr. Kims’s applications for leave to appeal on April 24, 2013 (21 NY3d 913). This Court has jurisdiction to review the issues raised by Mr. Kims on this appeal pursuant to CPL 450.90 (1) insofar as the Memorandum and Order of the Appellate Division was adverse to Mr. Kims by affirming the judgment of conviction, and the issues are reviewable because they are questions of law that were raised at the Appellate Division pursuant to CPL 470.35 (1). 6 The first question raised by Mr. Kims (whether the trial court erred in its Molineux rulings and thereby denied Mr. Kims his right to a fair trial) was preserved for review at the trial court on July 6, 2010, when defense counsel filed an Omnibus Motion (Supplemental Appendix [hereafter S.A.] 76), which sought, inter alia, disclosure of any prior uncharged acts to be used for impeachment, and a Molineux ruling prohibiting the prosecutor from presenting evidence that Mr. Kims committed any other crime. A Sandoval/Molineux hearing was held (People’s Appendix [hereafter P.A. 113-127), and the trial court rendered a decision on Mr. Kims’ application (S.A. 183-192). The second question raised by Mr. Kims on this appeal (whether law enforcement officers conducted an improper “protective sweep” before a warrant was obtained) was preserved for review at the trial court by the same Omnibus Motion, which also sought suppression of all evidence due to lack of probable cause. The trial court held a suppression hearing (P.A. 8-112), and the court rendered a decision on the motion (S.A. 143-161). The third question raised by Mr. Kims (whether the conviction should have been reversed in its entirety because of prosecutorial misconduct) was either preserved by contemporaneous objections to the misconduct throughout the trial, or can otherwise be addressed by this Court under the authority of People v Fisher (18 NY3d 964 [2012]), inasmuch as the failure of trial counsel to object to 7 particular instances of misconduct does not prevent this Court from addressing that misconduct: “[a]fter a certain point, . . . the cumulative effect of a prosecutor’s improper comments . . . may overwhelm a defendant’s right to a fair trial” (People v Riback, 13 NY3d 416, 423 [2009]). 8 STATEMENT OF FACTS On October 29, 2009, defendant Stanley R. Kims, II had been released to parole supervision in Watertown (Trial Transcript [hereafter Tr.] 418; P.A. 234), after serving a prison sentence for Attempted Criminal Sale of a Controlled Substance in the Third Degree. He went to live with his mother, sisters and stepfather on Olive Street (Tr. 422, 1052; P.A. 238, 868), and he was there every time his parole officer visited the home from November 2009 through February 2010 (Tr. 427-429; P.A. 243-245). He also got a job at a local Wendy’s Restaurant (Tr. 474, 498; P.A. 290, 314). He was required to report to his parole officer weekly at first, then biweekly, and his parole officer could not remember Mr. Kims ever failing to report (Tr. 474; P.A. 290). Around the end of March, 2010, Watertown Police Detective James McNitt was told by a man named Jonathan Crandall that Mr. Kims had a “stash house” on LeRay Street in Watertown (Tr. 576, 638; P.A. 392, 454). Detective McNitt and his partner began driving though that area more frequently and, on April 7, noticed Mr. Kims’ vehicle, a gray 2002 Chevy Suburban, in the driveway of 697 LeRay Street (Tr. 577-578; P.A. 393-394). They watched that residence for 20-30 minutes, and saw two men come out, followed by Mr. Kims (Tr. 578; P.A. 394). The first two men left in a blue Chevy Impala, and Det. McNitt and his partner radioed a road patrol officer to stop that car (id.). 9 The men were identified as Quinten Roach and Christopher Wilson (Tr. 579; P.A. 395). When the prosecutor asked at trial whether they were “known drug dealers,” and counsel for Mr. Kims objected, Det. McNitt answered “Yes” before the court could sustain the objection (id.), and went on to say that he had the two men followed that day (rather than Mr. Kims) because he “had heard … how things in Mr. Kims’ organization operate,” and he “had a pretty good feeling, or a decent chance that the two black males leaving the residence may have been carrying narcotics” (id.). Nevertheless, no narcotics were found on the two men (id.). On April 9, 2010, after finding out that the residence on LeRay Street (a duplex) was owned by ______ and ______ K_____, Det. McNitt learned from them that the downstairs apartment had been rented by Mr. Kims (Tr. 580; P.A. 396). On April 12, Det. McNitt called Mr. Kims’ parole officer, Patrick Glennon, and told him that he believed Mr. Kims was staying at a residence on LeRay Street, other than the residence on Olive Street that Mr. Kims had reported to (and been approved by) Officer Glennon (id.). Later that same morning, Det. McNitt and his partner saw Mr. Kims’ vehicle at the LeRay Street residence, and called Off. Glennon to tell him (Tr. 580-581; P.A. 396-397). Officer Glennon asked them to stay in the area in case their assistance was needed, so 10 they parked their vehicle in a nearby lumberyard, where they could observe the back of the residence (Tr. 581; P.A. 397). Officer Glennon, his partner (Christopher Lawrence), and two other parole officers then went to LeRay Street to observe the front of the residence, with the intention of asking Mr. Kims about it (Tr. 435-440; P.A. 251-256). He and his partner observed other individuals come and go from the apartment, and did a license plate check on a vehicle driven by one of those individuals, which indicated that the vehicle was registered to Quinten Roach (Tr. 441; P.A. 257). (At trial, the prosecutor asked Off. Glennon if he was familiar with Mr. Roach, and Off. Glennon responded that he “[j]ust knew his name in the mix as one of the individuals in Watertown who has a criminal history of drug use”; after defense counsel’s objection to the response was sustained, Off. Glennon repeated the response after the prosecutor’s followup question [Tr. 441-442; P.A. 257-258].) Officer Glennon and his partner then observed Mr. Kims come out of the residence with another man whom they did not recognize (Tr. 443; P.A. 259). They radioed the other parole officers that they were going to approach the residence (Tr. 444; P.A. 260). As they did so, they saw Mr. Kims and the other man getting into Mr. Kims’ vehicle, and the parole officers pulled their vehicle in the driveway behind it to prevent Mr. Kims and the other man from leaving 11 (Tr. 444-445; P.A. 261-262). The parole officers ordered Mr. Kims to turn off his vehicle and get out, but Mr. Kims shifted his vehicle into reverse, until he “realize[d] he has got no place to go” (Tr. 445, 449; P.A. 262, 266). When they saw Mr. Kims then reach over into the console area of his vehicle, the parole officers drew their guns and began “screaming” at him to turn the car off, open the doors and show them his hands (Tr. 445, 450; P.A. 262, 267). When Officer Glennon observed the passenger-side door unlock, he opened it, pulled the passenger (Robert Sawyer) out by the hand, threw him to the ground, and handcuffed him (Tr. 446, 450; P.A. 263, 267). As Officer Glennon was handcuffing Sawyer, he saw Mr. Kims go out the passenger-side door, trip and fall (Tr. 446; P.A. 263). Two of the other parole officers handcuffed Mr. Kims (Tr. 446, 450; P.A. 263, 267). A bag of cocaine was found on the ground next to the passenger-side door, and more bags of cocaine were found on Sawyer’s person and in the console area of Mr. Kims’ vehicle (Tr. 452; P.A. 269). No cocaine was found on Mr. Kims (id.). Officer Glennon then radioed Detective McNitt and his partner for assistance because of the discovery of cocaine, and the detectives drove to the front of the residence (Tr. 584; P.A. 400). People began gathering in the neighborhood, and Mr. Kims began to yell “Call Chino” repeatedly (Tr. 585- 586; P.A. 401-402). Detective McNitt knew “Chino” to be a man named Jeffrey 12 Fineout (Tr. 585; P.A. 401). When Detective McNitt asked Mr. Kims if there was anyone else inside the residence, Mr. Kims stopped yelling (Tr. 586; P.A. 402). Detective McNitt decided to organize a “protective sweep” of the residence, “based on the preservation of the evidence inside and the safety of all persons around in case there was somebody else inside the residence” (Tr. 587; P.A. 403). He, another police officer, and two parole officers entered the residence, using a key from a keychain found in Mr. Kims’ vehicle to unlock the front door (id.). Inside the front door, they found Jeffrey Fineout asleep on a couch, and found no one else in the residence (Tr. 588; P.A. 404). They observed a large bowl containing a white powder substance on the kitchen counter, along with drug paraphernalia (Tr. 589-592; P.A. 405-408). They immediately obtained a search warrant, went back to the residence, and executed the warrant (Tr. 593; P.A. 409). In addition to cocaine, they found a safe and two large trash bags containing marihuana in the bedroom closet (Tr. 594-597; P.A. 410-413). $24,000 in cash was found in the safe, and approximately $2,100 was found in a nightstand in the bedroom (Tr. 604-605; P.A. 420-421). The cocaine found in the kitchen weighed approximately 9.9 ounces (Tr. 609; P.A. 425). As the police were leaving after executing the warrant, Mr. Kims’ mother arrived and asked for the keys to the residence (Tr. 626; P.A. 442). Detective 13 McNitt called another detective who was with Mr. Kims at the Public Safety Building and obtained permission from Mr. Kims to give the keys to his mother (Tr. 626, 697; P.A. 442, 513). At trial, Det. McNitt testified that the “street value” of the cocaine, at $100 per gram, was between $28-29,000, and the 3½ pounds of marihuana were worth $15,000, at a price of $10 per gram (Tr. 609-610; P.A. 425-426). Over the objection of defense counsel, Det. McNitt was allowed to tell the jury that this was “by far the largest seizure or find we have had in the search warrants I have done” (Tr. 627; P.A. 443): “The quantity of drugs and money that was located in that house is not typical of what you would find in a normal drug house. This would be what would be indicative of a safe house; a place the dealer would stash a large amount of drugs and cash, thinking that they were safe” (Tr. 627- 628; P.A. 443-444). At trial, Det. McNitt’s partner, Det. Jerry Golden, testified substantially in accord with Det. McNitt’s testimony (Tr. 656-689; P.A. 472-505), agreeing that this was “one of the larger seizures that we have made in the city” (Tr. 670; P.A. 486). In describing the incident on April 7, when he and Det. McNitt had a road patrol officer pull over the car found to contain Christopher Wilson and Quinten Roach, he told the jury that those two men were known to him because of prior investigations (Tr. 672; P.A. 488), and he believed that Mr. Kims was using them to transport his drugs (Tr. 674; P.A. 490). He added that 14 Jeffrey “Chino” Fineout worked for Mr. Kims “in the drug world” (Tr. 685; P.A. 501), and ran the business for Mr. Kims when he was in prison on his prior felony conviction (Tr. 686-689; P.A. 502-505). Indictment No. 255-10, filed May 3, 2010 charged Mr. Kims with five counts, the most serious of which was Criminal Possession of Controlled Substance in the First Degree (S.A. 7-10). He was arraigned on May 10, and his attorney served a Demand for Discovery and Request for Bill of Particulars one week later (S.A. 99). The prosecutor’s Discovery Response was dated May 27, 2010 (S.A. 11). On July 6, 2010, defense counsel filed an Omnibus Motion (S.A. 76) seeking, inter alia, suppression of all evidence due to lack of probable cause, disclosure of any prior uncharged acts to be used for impeachment, and a Molineux ruling prohibiting the prosecutor from presenting evidence that Mr. Kims committed any other crime. By order dated November 24, 2010 (S.A. 125), the court ordered a probable cause hearing (S.A. 136), and ordered the prosecutor to disclose any prior bad acts in advance of a Sandoval/Molineux hearing (S.A. 137). The probable cause hearing was held on November 29, 2010. At the hearing, Off. Glennon, his partner Off. Lawrence, and Det. McNitt testified substantially as set forth above. Officer Lawrence also testified that it was 15 Sawyer, not Mr. Kims, who had dropped the bag of cocaine to the ground when he got out of Mr. Kims’ vehicle (11/29/10 Minutes at 67, 74-75; P.A. 73; 80-81). The reasons that Det. McNitt gave at the probable cause hearing as the basis for ordering a protective sweep (id. at 84, 97-98; P.A. 90, 103-104) were the same reasons that he would later give at trial, as set forth above. In its suppression decision issued December 20, 2010 (S.A. 143), the court found that Mr. Kims was believed to be a member of a gang involved in local violent incidents (S.A. 146), and held that the “protective sweep” was a valid warrantless intrusion because there was probable cause and the police needed to act quickly to preserve evidence (S.A. 154). Defense counsel immediately moved for reconsideration of the court’s order, and the court issued an order on January 19, 2011 that addressed the motion for reconsideration as well as defense counsel’s pending pretrial motions (S.A. 162). The court denied reconsideration, although stating that the issue of purported gang membership “should have been more correctly contained in a footnote rather than in the findings of fact” (S.A. 169). The court stated that the issues of gang membership and prior bad acts would be addressed at a pretrial Sandoval/Molineux hearing (S.A. 172-173). That hearing was held the next day, January 20, 2011. Mr. Kims turned down an offer to plead to a charge of Criminal Possession of a Controlled 16 Substance in the Second Degree (an A-2 felony), with a sentence promise of eight years, plus five years of postrelease supervision (1/20/11 Minutes at 2; P.A. 114). Following a brief Sandoval hearing, the court indicated that it would allow Mr. Kims to be cross-examined about the facts of two prior misdemeanor convictions, but held with respect to his prior felony conviction that the prosecutors could only ask whether he had been convicted of a C felony (1/20/11 Minutes at 8-10; P.A. 120-122). The prosecutors then submitted a memorandum outlining the prior bad acts that they proposed to present during their case in chief (S.A. 179), including Mr. Kims’ reputation as a “gang member” and a “high-ranking member of a drug-related organization” (which they argued were relevant as “background information”). The prosecutors also sought to introduce evidence of prior drug sales witnessed by three informants, Robert Sawyer (who had agreed to testify against Mr. Kims), Andre Tillman (who lived in the upper half of the duplex on LeRay Street), and Kenneth Mallette, arguing that the prior sales would both show an intent to sell and show that Mr. Kims was acting in concert with others. In addition, the prosecutors sought to introduce evidence of an uncharged attempted escape and incidents of alleged witness tampering, as proof of consciousness of guilt. The attempted escape had occurred on 17 November 4, 2010 (Tr. 701-703; P.A. 517-519) (seven months after the crimes charged), on an occasion when Mr. Kims (who had been released from jail on bail pending trial on the indictment in this case) had reported to his parole officer, was arrested on a parole violation charge, and was being transported from the parole office to the police station (id.). In a Decision-Order dated January 27, 2011 (S.A. 183), the court allowed proof of prior drug sales, holding that they were probative not only of intent to sell, knowing possession, intentional possession, and constructive possession, but also of “the existence, chain of command and practices and manners of operation of an alleged business which profits from the sale of controlled substances and marihuana and which is allegedly operated and/or managed, at least in part, by [Mr. Kims]” (S.A. 186). The court held that the prosecutors would not be allowed to introduce evidence that Mr. Kims was reputed to be a gang member or a “high-ranking member of a drug organization,” and warned them not to let their witnesses use the words “gang” or “Crip” (S.A. 189-92). Nevertheless, the court held that it would allow prosecution witnesses to testify if they had “first hand knowledge” of Mr. Kims’ membership in a drug organization (S.A. 190-191). The court also allowed testimony regarding the allegations of attempted escape and witness tampering, to show consciousness of guilt (S.A. 186, 189). 18 The trial began on January 31, 2011. In their opening statement, the prosecutors immediately mentioned that this was “one of the largest drug busts in Jefferson County” (Tr. 363; P.A. 179), and promised to have informants testify that they had watched Mr. Kims sell and possess drugs during the time they have known him (Tr. 373; P.A. 189). The prosecutors’ first witness was Mrs. K_____, owner of the duplex on LeRay Street, who introduced a lease agreement for the downstairs unit that Mr. Kims had signed (Tr. 393; P.A. 209). Officer Glennon next testified concerning his parole supervision of Mr. Kims, and the events of April 12, 2010, as set forth above (Tr. 410-508; P.A. 226-324). He also testified that he found a copy of the lease agreement, and a National Grid utility bill addressed to Mr. Kims, in or on the nightstand in the bedroom at LeRay Street (Tr. 467- 471; P.A. 283-287). His partner, Officer Lawrence, also testified concerning the events of April 12, telling the jurors about the cocaine that he had found in Sawyer’s sock, the baggies of cocaine and the scales that he found in Sawyer’s sweatshirt, the bag of cocaine that Sawyer had dropped to the ground, and the bag of cocaine from the vehicle’s console (Tr. 528-538; P.A. 344-354), but telling them that no drugs had been found on Mr. Kims (Tr. 529, 547; P.A. 345, 363). 19 One of the other parole officers present on April 12, Matthew Mullin, then testified that, during the arrest of Mr. Kims, he found a bill inside Mr. Kims’ wallet containing the name of Shawn Granger (Tr. 560; P.A. 376). Officer Mullin testified that Granger was a parolee under his supervision, following a conviction for criminal possession of a controlled substance (Tr. 560-561; P.A. 376-377).1 Officer Mullin also stated that no drugs were found on Mr. Kims during the arrest (Tr. 567; P.A. 383). Detective McNitt then testified, as set forth above (Tr. 572-647; P.A. 388-463). He also identified an i-phone found in Mr. Kims’ vehicle as belonging to Mr. Kims, and identified several of the contacts listed on the phone (Tr. 610-622; P.A. 426-438). His partner, Det. Golden, also testified as previously set forth (Tr. 656-689; P.A. 472-505), explaining how the police used confidential informants in drug investigations (Tr. 671, 679; P.A. 487, 495). He mentioned one of the informants scheduled to testify (Kenny Mallette) as “very familiar with the folks involved, proven reliable many times in the past with information” (Tr. 688; P.A. 504). Watertown Police Officer Ronald Gatch testified that he was the first one into the LeRay Street residence during the “protective sweep,” and he found Jeffrey Fineout on the couch (Tr. 1 The Court may recall Mr. Granger from prior cases, including Matter of Granger v Misercola (21 NY3d 86 [2013]) and People v Granger (96 AD3d 1667, 1668, 1669 [4th Dept 2012], lv denied 19 NY3d 1102 [2012] [Read, J.]). 20 689-700; P.A. 505-516). Watertown Police Officer George Cummings testified to the facts concerning the alleged attempted escape by Mr. Kims on November 4, 2010, when he was being picked up for a parole violation (Tr. 701-707; P.A. 517-523). Then, the prosecutors began presenting the testimony of their informants. First, Andre Tillman testified that he lived upstairs in the duplex on LeRay Street, and would visit the downstairs apartment to buy marihuana from “Chino” Fineout (Tr. 727-728; P.A. 543-544). Although he saw Chino there almost every day (Tr. 751-753; P.A. 567-569), he never saw Mr. Kims there when he was buying marihuana, although he did observe a black gym bag there that he thought belonged to Mr. Kims (Tr. 727-731; P.A. 543-547). He knew that Shawn Granger sold drugs (Tr. 732; P.A. 548), and he was a DJ at a “going away party” hosted by Granger at his house before Mr. Kims went to prison on his prior felony conviction (Tr. 732-733; P.A. 548-549). Over defense counsel’s objection, Tillman testified that a photograph taken at the party (P.A. 1123) showed Chino, Mr. Kims, and Sawyer (Tr. 737; P.A. 553), and that he knew them to be involved in selling drugs (Tr. 738; P.A. 554), although he admitted on cross examination that this was only “hearsay” and “street talk,” reiterating that he had never purchased drugs from Mr. Kims (Tr. 754- 755; P.A. 570-571). In fact, when he asked Mr. Kims about selling drugs to 21 raise money to pay for an attorney to represent him on a pending drug charge, Mr. Kims (who was by then facing the charges in the instant case himself), offered him only sympathy (Tr. 739-740; P.A. 555-556). By the time of Mr. Kims’ trial, Tillman had pled guilty to the charge against him (criminal sale of a controlled substance in the 5th degree), and had been promised a sentence of probation that had not yet been imposed (Tr. 722-723; P.A. 538-539). Kenneth Mallette then testified that he was on parole for a burglary that he had committed to support his cocaine habit (Tr. 759-763; P.A. 575-579). He had bought cocaine from Mr. Kims in 2004 and 2005 (Tr. 765; P.A. 581), and Mr. Kims (after his 2008 felony conviction) ended up in the same prison dormitory as Mallette (Tr. 766-767; P.A. 582-583). Over defense counsel’s objection, Mallette testified that Mr. Kims told him then that he had previously traded cocaine to Shawn Granger in return for marihuana (Tr. 768; P.A. 584), and that he had worked with Chino selling drugs (Tr. 769; P.A. 585). When one of the prosecutors asked Mallette if Mr. Kims had ever talked about gang affiliation, the court overruled defense counsel’s immediate objection and allowed Mallette to testify that Mr. Kims had said one time in 2004 or 2005 that he was involved in the Crips (Tr. 768-771; P.A. 584-587). Mallette testified that, when he worked in Shawn Granger’s blacktop sealing business, he had observed Granger and Chino exchanging drugs, but not Mr. Kims (Tr. 22 771; P.A. 587). He testified that Mr. Kims had told him of a “safe house” that he had on LeRay Street and had taken him there twice (Tr. 773-775; P.A. 589- 591). He observed Chino sleeping on the couch during the first visit, but he stayed outside during the second (Tr. 775, 798; P.A. 591, 614). Over defense counsel’s objection, he testified that he had seen Chino (but no one else) sell drugs for Mr. Kims (Tr. 776-777; P.A. 593-594). He also testified that he had seen Mr. Kims wearing a large diamond-cluster watch that was found during the search of the LeRay Street premises (Tr. 777; P.A. 594). On cross examination, Mallette admitted that he had been an informant for the Drug Task Force for almost 20 years, but denied receiving any consideration for his testimony at this trial, claiming that he was just trying “to get drugs off the street” (Tr. 790-794; P.A. 606-610). Although defense counsel had not asked about witness intimidation during cross examination, the prosecutors asked Mallette on redirect why he had been delayed a day in testifying, and he responded that, since he testified at Fineout’s trial, he had been receiving threats over the phone, and threats on Facebook, which he attributed to people “that are affiliated with Mr. Kims” (Tr. 801-802; P.A. 617- 618). Then it was Robert Sawyer’s turn to testify. He said that he and Mr. Kims are distant cousins, originally from New York City (Tr. 806-807; P.A. 23 622-623). Mr. Kims moved to Watertown first, returning to New York City with Chino on New Year’s Eve 2006 with drugs and money (Tr. 808; P.A. 624). They spent the evening with Sawyer and returned to Watertown the next day, paying for a bus ticket for Sawyer to Watertown also (Tr. 809; P.A. 625). Sawyer stayed in Watertown for a week, and testified that he saw Mr. Kims selling cocaine four or five times that week (Tr. 810; P.A. 626). He visited Watertown several times thereafter, and observed Mr. Kims and Chino selling drugs. He admitted that he had been addicted to cocaine over the years, and that he had been sentenced six years earlier to a year in jail for selling drugs to support his habit (Tr. 814; P.A. 630). Sawyer moved to Watertown by December 2009 (Tr. 811-812; P.A. 627- 628). He testified that he would buy crack from Mr. Kims after that, or Mr. Kims would give it to him if he didn’t have the money (Tr. 815-816; P.A. 631- 632). He testified that he had observed Mr. Kims mixing cocaine with cutting agents such as Inositol, and selling cocaine to others (Tr. 816-817; P.A. 632- 633). He testified that Mr. Kims supplied about seven people with cocaine, which those people then broke down further and sold to other people, reimbursing Mr. Kims if they had not already paid him in advance (Tr. 818; P.A. 634). When Sawyer was asked whether he knew Mr. Kims to have any gang ties, the court overruled defense counsel’s objection and allowed Sawyer 24 to respond that Mr. Kims was affiliated with the Crips, and wore a blue bandanna outside his pocket (Tr. 819; P.A. 635). Sawyer testified that he had walked to the LeRay Street residence on April 12, 2010 with $50 to buy half a gram of crack cocaine (Tr. 821-822; P.A. 637-638). Fineout answered the door and called to Mr. Kims, who came out of the kitchen (Tr. 822; P.A. 638). Sawyer testified that he gave Mr. Kims the $50 and Mr. Kims went back to the kitchen, returning 15-20 minutes later with a baggie of crack cocaine (Tr. 823-824; P.A. 639-640). Mr. Kims then offered him a ride, and they walked out of the house and got in Mr. Kims’ vehicle (Tr. 824; P.A. 640). When the parole officers approached the vehicle, Sawyer first thought that it was a robbery, and Mr. Kims locked the doors (Tr. 825; P.A. 641). After Mr. Kims put the vehicle in reverse, then jerked to a stop, Sawyer saw the parole officers draw their guns (Tr. 825-827; P.A. 641-643). At that point, the officers drew their badges and identified themselves (Tr. 827; P.A. 643), and Sawyer testified that Mr. Kims “slid [him] some drugs” that Mr. Kims had removed from the front pocket of his hoodie (Tr. 827-828; P.A. 643-644). Sawyer testified that he put the first package of drugs in his sock, put some other baggies and a scale in the front pocket of his own hoodie, and held another bag of crack cocaine in his hand (Tr. 828-830; P.A. 644-646). He 25 admitted dropping the bag of cocaine from his hand when he was pulled out of the vehicle (Tr. 830-831; P.A. 646-647). He stated that he was unaware that there was more cocaine in the vehicle (Tr. 831; P.A. 647). Sawyer also testified that, while he was in jail, he discussed with Mr. Kims and Fineout the possibility of dividing the charges against them so that their sentences would even out (Tr. 832-833; P.A. 648-649). After he signed a statement admitting responsibility for all of the drugs found outside of the house, a girlfriend of Mr. Kims sent him $100 (Tr. 834; P.A. 650). After Sawyer’s son was born in May 2010, Mr. Kims’ mother sent Sawyer a card congratulating him and enclosing money (Tr. 837-840, 879; P.A. 653-656, 695). Sawyer construed this as a threat from Mr. Kims that if he did not cooperate, his son would be harmed (Tr. 866-869; P.A. 682-685). Letters that Mr. Kims sent to Sawyer were admitted in evidence over defense counsel’s objection, saying that Mr. Kims, Fineout and Sawyer needed to stick together and not testify against each other if they were going to be able to beat the charges against them (Tr. 840-866; P.A. 656-682). Sawyer admitted that he was receiving a reduced sentence in return for testifying against Mr. Kims (Tr. 871-872; P.A. 687-688), and he admitted that he had perjured himself while testifying at Fineout’s trial that he had never been inside the house at LeRay Street (Tr. 873-874; P.A. 689-690). On cross 26 examination, he also admitted that prosecutors had promised him that no federal charges would be brought against him (Tr. 875-876; P.A. 691-692). He admitted that he had gone on a drug run to Syracuse with Chino, but he had never seen Mr. Kims make large purchases of drugs, only small sales (Tr. 898- 900; P.A. 714-716). John Pierce, from the New York State Police Crime Lab, testified concerning his testing of the cocaine and marihuana received from Jefferson County in this case (Tr. 923-965; P.A. 739-781). Vance Trapp, an evidence technician for the Watertown Police Department, testified concerning the gathering of evidence at LeRay Street and the mailing of the cocaine and marihuana to the State Police (Tr. 990-1020; P.A. 806-836). Frank Seymour, a deputy at the Jefferson County Jail, testified concerning an altercation between an inmate named Skelly Crowell and another inmate who was scheduled to testify against Mr. Kims (Tr. 1020-1029; P.A. 836-845). Crowell testified that he beat up the other inmate because Mr. Kims had asked him to do so (Tr. 1029-1044; P.A. 845-860). The prosecution rested (Tr. 1044; P.A. 860), and defense counsel moved for a trial order of dismissal, on which the court reserved decision (Tr. 1045-1050; P.A. 861-866). The defense presented the testimony of Mr. Kims’ stepfather William Carrigan (Tr. 1051- 1078; P.A. 867-894), then rested (Tr. 1078-1079; P.A. 894-895). 27 During a conference in chambers about proposed jury charges, defense counsel argued that the “room presumption” of Penal Law § 220.25 (2) by its terms did not apply in this case because Mr. Kims was not located within the premises in the room(s) (or in close proximity to the room[s]) where the cocaine and marihuana were found (Tr. 981-982; P.A. 797-798). Based on the evidence that Mr. Kims was seen walking out of the home with Sawyer just prior to the arrest (Tr. 981; P.A. 798), the court indicated that it was going to charge the “room presumption,” along with the “automobile presumption” of Penal Law § 220.25 (1) with respect to the cocaine found in Mr. Kims’ vehicle (Tr. 985; P.A. 801). In his summation, defense counsel argued that Sawyer was not worthy of belief, and the presence of cocaine on Sawyer (but not Mr. Kims) in the vehicle, together with the testimony that it was Chino (not Mr. Kims) who was selling drugs out of the house on LeRay Street required a not guilty verdict (Tr. 1091-1117; P.A. 907-933). In its closing, the prosecution returned to the theme that this one of the biggest drug busts in Watertown’s history (Tr. 1119; P.A. 935), and vouched for the credibility of its informants (Tr. 1124- 1125, 1127; P.A. 940-941, 943). It sought to rely on the connection between drug dealer Shawn Granger and Mr. Kims (Tr. 1128; P.A. 944), in particular the photo taken during the party at Granger’s house, to portray Mr. Kims as a 28 drug dealer of long standing (Tr. 1129; P.A. 945). It returned to the inflammatory allegation of gang membership against Mr. Kims, to bolster the testimony of its informants that they were afraid of Mr. Kims (Tr. 1133; P.A. 949), not because there was any evidence of a connection between gang membership and drug possession. It speculated about persons purportedly involved in a “drug organization” of which Mr. Kims was “the CEO,” merely because there were text messages from those persons on Mr. Kims’ cell phone (Tr. 1132-1133; P.A. 948-949). It dropped the names of persons who had been “targets of Drug Task Force investigations” and had been seen at LeRay Street on two occasions (Tr. 1143; P.A. 959), as if their presence on those occasions was proof of guilt of Mr. Kims. In explaining the concept of possession to the jury, the court instructed the jury on the room presumption and the automobile presumption (Tr. 1195- 1197; P.A. 1011-1013). The court left the jury to deliberate at 4:40 p.m., and the jury returned a verdict before 6:00 p.m., without having requested any further instructions or readback, convicting Mr. Kims on all five counts of the indictment (Tr. 1219; P.A. 1035). On March 28, 2011, the court sentenced Mr. Kims to concurrent sentences, the longest of which was 16 years, plus five years of postrelease supervision. Mr. Kims then timely appealed to the Appellate Division, Fourth Department (S.A. 2-4). 29 On that appeal, Mr. Kims raised four arguments: POINT ONE: THE TRIAL COURT’S ERROR IN INSTRUCTING THE JURY ON THE ROOM PRESUMPTION, WHEN MR. KIMS WAS NOT INSIDE THE PREMISES WHERE THE DRUGS WERE FOUND, REQUIRES REVERSAL AND A NEW TRIAL; POINT TWO: THE TRIAL COURT ABUSED ITS DISCRETION IN ITS MOLINEUX RULINGS, AND THEREBY DENIED MR. KIMS HIS RIGHT TO A FAIR TRIAL; POINT THREE: THE CONVICTION MUST BE SET ASIDE BECAUSE OF PROSECUTORIAL MISCONDUCT; and POINT FOUR: THE EVIDENCE FOUND INSIDE THE RESIDENCE ON LERAY STREET SHOULD HAVE BEEN SUPPRESSED BECAUSE OF THE WARRANTLESS “PROTECTIVE SWEEP” BY POLICE. By a Memorandum and Order entered June 15, 2012 (96 AD3d 1595), the Appellate Division modified the judgment by reversing those parts convicting Mr. Kims of possession of cocaine and granting a new trial on those counts of the indictment, holding that County Court had erred in charging the jury with respect to the presumption contained in Penal Law § 220.25 (2). With respect to the remaining charges in the indictment, the Appellate Division rejected Mr. Kims’ arguments and affirmed the judgment. Presiding Justice Scudder dissented in part and would have affirmed the judgment in its entirety, disagreeing with the majority that County Court had erred in charging the presumption set forth in § 220.25 (2). 30 This Court (Smith, J.) granted both the People’s and Mr. Kims’s applications for leave to appeal on April 24, 2013 (21 NY3d 913). 31 ARGUMENT POINT ONE: THE TRIAL COURT’S ERROR IN INSTRUCTING THE JURY ON THE ROOM PRESUMPTION, WHEN MR. KIMS WAS NOT INSIDE THE PREMISES WHERE THE DRUGS WERE FOUND, REQUIRED REVERSAL AND A NEW TRIAL. The “room presumption” of Penal Law § 220.25 (2), sometimes referred to as the “drug factory presumption,” states that the presence of a narcotic drug or marihuana “in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found” [emphasis added], with certain exceptions not relevant to this case. This Court has held that the “close proximity” requirement cannot be negated by an instruction that the presumption can be applied when a person is in a different room, so long as the room where the drugs are found is adjacent to (or could be observed from) the room where the person is located (People v Martinez, 83 NY2d 26, 36-37 [1993], cert denied 511 US 1137 [1994]). If the presumption cannot be applied to a person in a different room when the drugs are found, then it certainly cannot be applied to a person who 32 is not even on the premises when the drugs are found. For example, in People v Negron (91 NY2d 788 [1998]), where the defendant was charged with possession of four glassine envelopes found atop the door frame of the house in front of which he was standing, the Court held that the defendant’s constructive possession of the narcotics in those envelopes had to be established by the police officer’s observations of the defendant’s movements with respect to those envelopes, and could not be established by means of any statutory presumption (91 NY2d at 793-794). In People v Pearson (75 NY2d 1001 [1990]), where the defendant was apprehended after exiting the back room of a grocery store where drugs were being prepared for sale, the Court held that there was no evidence that the defendant had any possessory interest in the room that might give him constructive possession of the drugs in the room, and rejected a comparison to a case in which it had applied the room presumption (People v Tejeda, 73 NY2d 958 [1989]) because the drugs in Tejeda were found in an apartment “in which the defendant was present” (Pearson, 75 NY2d at 1002). If the person isn’t present on the premises in close proximity to where the drugs are found, then the “room presumption” simply cannot apply (see generally People v Diaz, 108 Misc 2d 213 [S Ct NY County 1981]). 33 The Appellate Division examined the legislative history of Penal Law § 220.25 (2) at some length in its decision. The Court noted that: “[t]he ‘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. ‘The occupants of such “factories,” who moments before were diluting or packaging the drugs, usually proclaim[ed] their innocence and disclaim[ed] ownership of, or any connection with, the materials spread before them,’ thus often leaving the police ‘uncertain as to whom to arrest’ (Mem of St Comm of Investigation, Bill Jacket, L 1971, ch 1044, at 4). Moreover, a letter from the 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 common situation 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 persons who might, upon the sudden appearance of the police, hide in closets, bathrooms or other convenient recesses’ (Letter from St Comm of Investigation, Dec. 1, 1971, Bill Jacket, L. 1971, ch 1044, at 6- 7)” (96 AD3d at 1596). The court concluded that, based on the facts of this case, Mr. Kims was not in close proximity to the cocaine at the time when the cocaine was found (id. at 1597). The majority distinguished People v Alvarez (8 AD3d 58 [1st Dept 2004], lv denied 3 NY3d 670 [2004]), relied upon by the dissent, inasmuch as the trial evidence in Alvarez “‘clearly warranted’ the conclusion that the defendant [Alvarez, who was the only occupant] of the apartment in which the drugs were found,” jumped out of the window in attempting to flee from the police, whereas Mr. Kims was not in flight from the 34 police, was apprehended in the driveway outside the apartment several minutes after leaving the apartment in which the drugs were later found, and the apartment was occupied by another person (96 AD3d at 1597). In her Brief to this Court, the District Attorney argues that the Court should follow the holding of Alvarez in Mr. Kims’ case. As recognized by the majority at the Fourth Department, however, the difference between Alvarez and this case stems from the legislative purpose behind the statute. “The statute was enacted ‘to cope with the problems of proof which result from raids on illicit drug “factories” * * * [after] such a raid discloses narcotics lying about in open view but not physically possessed by any particular person or persons’” (People v Uribe, 113 Misc 2d 207, 209 [S Ct NY County 1982] [internal citations omitted]). Mr. Alvarez had left the room during the raid that had disclosed the narcotics in his case; Mr. Kims had left before the warrantless entry by the police into the apartment (which was itself prompted by the events that occurred after Mr. Kims had already been taken into custody). Consistent with the legislative purpose of the statute, the drug factory presumption could properly have been charged against codefendant Jeffrey Fineout, who was found asleep on a couch in the living room (and whose conviction was affirmed the same day as the decision in Mr. Kims’ appeal [People v Fineout, 96 AD3d 1601 (4th Dept 2012), lv denied 19 NY3d 35 1025 (2012)]). The presumption was not properly charged against Mr. Kims, however, when he was not inside the apartment when the drugs were found, and when his exit from the apartment had not been prompted by a police raid. In her Brief, the District Attorney also argues that this Court should follow the holding of cases such as People v Kelly (261 AD2d 133 [1999], lv denied 94 NY2d 824 [1999]), where the First Department held that the presumption was properly charged in a case “where the defendant was located in a completely separate apartment” from the one where the drugs were found (Brief at 21), because he was distributing the drugs out of that apartment while storing the drugs in the other. The argument appears to be based on a misreading of the facts of that case: the defendant was found inside of an apartment where the drugs were “within his reach” (261 AD2d at 134), while his live-in girlfriend was in the vestibule of the apartment building selling the drugs. Accordingly the First Department could hold in that case, consistent with the statute. that “[t]he use of the apartment to store drugs ‘prepared in connection with the seller’s contemporaneous sales activity down the hallway’ was sufficient to support the court’s submission to the jury of the statutory room presumption” (id.): the drugs were within the defendant’s reach in the apartment where the defendant was found. 36 The District Attorney also cites People v Santiago (243 AD2d 328 [1st Dept 1997], lv denied 91 NY2d 879 [1997]), People v Miranda (220 AD2d 218 [1st Dept 1995], lv denied 87 NY2d 849 [1995]), People v Maldonado (189 AD2d 737 [1st Dept 1993], lv denied 81 NY2d 1016 [1993]), and People v Riddick (159 AD2d 596 [2d Dept 1990], lv denied 76 NY2d 741 [1990]) and argues that there is no requirement that the defendant be apprehended in the same room as the one where the drugs are found” (Brief at 19). In Mr. Kims’ case, however, this Court need not reach the question whether such a proposition would be consistent with the legislative intent behind the statutory presumption, because Mr. Kims was not in an adjacent room – he was outside his apartment, under arrest, when the cocaine was discovered in the apartment, and thus there was no need for the police to be able to decide whether they had the authority to arrest him thereafter. In People v Pearson (supra, 75 NY2d 1001 [1990]), where the defendant was apprehended after exiting the back room of a grocery store where drugs were being prepared for sale, this Court rejected a comparison to a case in which it had applied the room presumption (Tejeda, supra, 73 NY2d 958) because the drugs in Tejeda were found in an apartment “in which the defendant was present” (Pearson, 75 NY2d at 1002). If the person isn’t inside the premises in close proximity to where the drugs are found, then the “room presumption” simply cannot apply. 37 The only theory on which the jury could have been properly charged on the evidence in Mr. Kims’ case was a theory of constructive possession (see e.g. People v Carvajal, 6 NY3d 305, 314 [2005]; People v Vaughn, 36 AD3d 434, 435 [1st Dept 2007], lv denied 9 NY3d 870 [2007], cert denied 552 US 1284 [2008]). The District Attorney improperly conflates that theory with the room presumption by arguing that Mr. Kims “had the sole proprietary interest” in the apartment where the drugs were found after his arrest (Brief at 20). This Court made clear in People v Negron (supra, 91 NY2d 788 [1998]) that the room presumption cannot be charged alongside the theory of constructive possession when the evidence does not support the room presumption charge. In that case, the Court held that the defendant’s constructive possession of the narcotics in glassine envelopes found atop the door frame of the house in front of which he was standing had to be established by the police officer’s observations of the defendant’s movements with respect to those envelopes, and could not be established by means of any statutory presumption (91 NY2d at 793-794). The District Attorney also relies upon this Court’s decision in People v Daniels (37 NY2d 624, 631 [1975]), where the Court held that the testimony of an accomplice could have been corroborated “in a proper case” by the room presumption, and the record established that the apartment belonged to 38 defendant Daniels, who had been observed leaving the apartment just prior to his arrest. Although Daniels had been arrested outside his apartment, he was not the only defendant arrested in that case – two codefendants (Cooper and Evans) were found inside the apartment where drugs were being packaged on the kitchen table (37 NY2d at 627). It was “the presence of these defendants [Cooper and Evans] in close proximity to a large supply of drugs” that could have been “sufficient evidence to corroborate the accomplice testimony” against them, not Daniels (37 NY2d at 630-631 [emphasis added]). In a separate Point in her brief, the District Attorney argues that the trial court’s error in charging the room presumption was harmless in light of the “overwhelming evidence of defendant’s guilt of criminal possession of the cocaine” (Brief at 25-31). It is irrelevant whether there might have been sufficient proof against Mr. Kims on a theory of constructive possession (cf. People v Torres, 68 NY2d 677 [1986]; People v Hawkins, 300 AD2d 1101 [4th Dept 2002], lv denied 99 NY2d 629 [2003]), because “there is no way of concluding, short of speculation, that the jury did not rely on” the improperly- charged presumption (Martinez, 83 NY2d at 37). The Appellate Division, Fourth Department was faced with a similar situation in People v Edwards (23 AD3d 1140 [2005]), where the jury had been instructed about the “room presumption” although the drugs had actually been found at the bottom of a 39 staircase leading up to the defendant’s apartment. Because there was “no way to discern whether the jury’s verdict ‘was predicated on the illegally charged presumption or on a finding of constructive possession irrespective of the presumption’” (23 AD3d at 1142, quoting Martinez, 83 NY2d at 35), that court reversed Ms. Edwards’ conviction as a matter of law and granted a new trial. That court properly did the same in Mr. Kims’s case. The District Attorney attempts to distinguish Martinez by arguing that the trial court in Martinez had not charged the jury “as to the permissive nature of the [drug factory] presumption,” instead telling the jury that “each and every person in close proximity to controlled substances at the time they are found is presumed to know of such possession” (Brief at 25-26). The District Attorney argues that the court in Mr. Kims’ case instructed the jurors that they “may, but are not required to,” draw an inference, and that the jurors must be assumed to have chosen the factually-supported theory (constructive possession) and not the factually-unsupported theory (the drug factory presumption) in this case. The District Attorney argues that, because the charge in this case was not an “illegal” charge like the one in Martinez, this Court can apply the harmless error analysis articulated in cases such as People v Giordano (87 NY2d 441, 451 [1995]) and People v Becoats (17 NY3d 643, 654 [2011], cert denied 132 S Ct 1970 [2012]). 40 The District Attorney’s argument is based on a misreading of Martinez. This Court did not hold that the charge in Martinez was illegal because it was couched in mandatory rather than permissive terms. To the contrary, the Court stated in Martinez that the problem with the trial court’s charge was that it “permitted the jury to conclude” that the drugs found in that case would satisfy the presumption statute (83 NY2d 36-37 [emphasis added]), and “gave the jury a choice of convicting defendant based upon an erroneously charged legal theory which should never have been in the case” (83 NY2d at 34, n 3). As the Court stated in Martinez in response to the same argument that the District Attorney now makes: “‘It is urged upon us * * * that * * * we should assume that the jurors – each of the twelve of them – followed the court when it was correct and disregarded the charge when it was incorrect * * * [that they] had the wit and ability, with unanimity, to adopt the right one and reject the wrong one. We think the statement of the thought contains its refutation’” (83 NY3d at 36, quoting People v Kelly, 302 NY 512, 517 [1951]). Where the trial court has mistakenly charged a presumption, “[i]n view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused, however justifiably engendered by the dead record, for ascertainment of guilt by a jury under appropriate judicial guidance, however 41 cumbersome that process may be” (Bollenbach v United States, 326 US 607, 615 [1946]). The District Attorney’s harmless error argument is also beyond review by this Court because it was not preserved for review at the Appellate Division. Although the District Attorney made harmless error arguments at the Appellate Division in response to Mr. Kims’ arguments about the trial court’s Molineux rulings (Respondent’s Brief at 24) and prosecutorial misconduct (id. at 27), she did not make the argument that she now raises before this Court with respect to the “room presumption” charge (see generally People v Hunter, 17 NY3d 725 [2011]; People v Concepcion, 17 NY3d 192 [2011]). 42 POINT TWO: THE TRIAL COURT ERRED IN ITS MOLINEUX RULINGS, AND THEREBY DENIED MR. KIMS HIS RIGHT TO A FAIR TRIAL. Not only should there have been a new trial on the cocaine charges because of the court’s improper jury instruction, there should also have been a new trial on all of the charges because, throughout these proceedings, the trial court allowed the prosecutors to present highly prejudicial evidence of prior acts by Mr. Kims that were not at all probative of the issue of his guilt on the charges in this indictment. Because the trial court erred in its Molineux rulings, the entire case should have been sent back for a new trial by the Appellate Division on that basis. As set forth above, the trial court allowed proof of prior drug sales, holding that they were probative not only of intent to sell, knowing possession, intentional possession, and constructive possession, but also of “the existence, chain of command and practices and manners of operation of an alleged business which profits from the sale of controlled substances and marihuana and which is allegedly operated and/or managed, at least in part, by [Mr. Kims]” (S.A. 186). The court allowed testimony regarding the allegations of attempted escape and witness tampering, to show consciousness of guilt (S.A. 186, 189). The court held that the prosecutors would not be allowed to introduce evidence that Mr. Kims was reputed to be a gang member or a “high-ranking member of 43 a drug organization,” and warned them not to let their witnesses use the words “gang” or “Crip” (S.A. 189-192). Nevertheless, the court held that it would allow prosecution witnesses to testify if they had “first hand knowledge” of Mr. Kims’ membership in a drug organization (S.A. 190-191). The Appellate Division held that the trial court’s Molineux ruling did not constitute an abuse of discretion because the evidence of prior drug sales and association with drug dealers was probative of “legally relevant and material issue[s] before the [jury]” (96 AD3d at 1597-1598 [citations omitted]), without identifying what those issues were. The Appellate Division also held that the limited probative force of the evidence of Mr. Kims’ escape was “no reason for its exclusion” (96 AD3d at 1598). The court did not address the repeated introduction of evidence of alleged gang membership. “In New York, the general rule is that all relevant evidence is admissible unless its admission violates some exclusionary rule” (People v Scarola, 71 NY2d 769, 777 [1988] [citations omitted]). All relevant evidence, however, is not admissible as of right (id.). Technically relevant evidence that is admissible may be excluded if its probative value is substantially outweighed by the danger that it will unfairly prejudice the defendant or mislead the jury (id). Generally, this evidence of uncharged crimes may be admitted where it shows motive, intent, the absence of mistake or accident, a common scheme 44 or plan, or the identity of the guilty party (People v Molineux, 168 NY 264, 297- 305 [1901]). “Whether evidence of prior crimes may be admitted under the Molineux rule is a question of law, not discretion" (People v Alvino, 71 NY2d 233, 242 [1987]). Trial courts must start from the premise that evidence of uncharged crimes is inadmissible (People v Resek, 3 NY3d 385, 390 [2004]). From there, the prosecutor must show that such evidence is probative of some legally relevant and material issue aside from the defendant's propensity to commit the crime charged (see People v Hudy, 73 NY2d 40, 54-55 [1988]). If the court makes this determination as a matter of law, it has the discretion to admit the evidence, but, even then, only after balancing its potential for undue prejudice (see People v Alvino, supra at 242; People v Santarelli, 49 NY2d 241, 250 [1980], rearg denied 49 NY2d 241 [1980]). Even if admissible, the evidence may not be received unless its probative value exceeds the potential for prejudice resulting to the defendant (Alvino, supra, 71 NY2d at 242). Admissibility under Molineux cannot be determined using a bright line test, but must be adjudged on a case-specific basis (see generally People v Ventimiglia, 52 NY2d 350 [1981]). “The point of Molineux is to prevent a jury from convicting a defendant because of his criminal propensity” (People v Arafet, 13 NY3d 460, 465 [2009]). 45 Both the Appellate Division and the trial court failed in their responsibilities to ensure that certain evidence was relevant and material to the case, and by allowing evidence with an enormous potential for prejudice that outweighed its probative value. In particular, the courts should never have allowed any evidence of gang membership because it was not relevant to any of the issues at trial. Before a court ever exercises its discretion whether to admit Molineux evidence, there must, “in the first instance, [be] a proper theory of relevance to support the introduction of the testimony” (People v Bradley, 20 NY3d 128, 133 [2012]. There was no such showing here. In her responding brief at the Appellate Division, the prosecutor argued that testimony concerning Mr. Kims’ alleged former gang membership “was inextricably interwoven with the crime charged” (Respondent’s Brief at 23), it established Mr. Kims’ “relationship with his co-defendants and those he had sold drugs to,” and it established his “ability to acquire large quantities of drugs as well as his role within the community” (id. at 24). Yet there is simply no such evidence appearing anywhere in the record. No testimony established that Mr. Kims’ codefendants or “those he had sold drugs to” were gang members, no testimony established that the drugs found in Mr. Kims’ vehicle and in the apartment came from gang members, and no testimony “inextricably interwove” the gang membership with any of the crimes charged 46 in this case. Instead, it appears that the only purpose of the reference to gang membership was to prejudice the jury by arguing that Mr. Kims’ “role within the community” was that of a gang member, whether or not he had committed the crimes charged. Evidence of alleged gang membership should never have been admitted because there was no connection between gang membership and the charged crimes (see People v Acevedo, 84 AD3d 1390, 1391 [2d Dept 2011], lv denied 17 NY3d 951 [2011]; People v Stewart, 92 AD2d 226, 229 [2d Dept 1983]). Because there was no probative value, and there was enormous potential prejudice to Mr. Kims, it was an abuse of discretion for the trial court to admit the evidence, and the Appellate Division should have said so (see People v Pagan, 88 AD3d 37, 39 [1st Dept 2011], lv denied 17 NY3d 954 [2011]). Moreover, the court should never have allowed the multitude of evidence that came in regarding prior drug sales. Evidence that Mr. Kims had sold drugs in the past (especially before his prior felony conviction in 2008) is not relevant to the issue of any dominion and control over the drugs that were found on LeRay Street in April 2010 (cf. People v Satiro, 72 NY2d 821 [1988]). Similarly, the evidence that drug dealer Shawn Granger had thrown a party for Mr. Kims before he went off to prison in 2008, and had traded drugs with him before that, is irrelevant to the events of April 2010. Instead, the admission of 47 such evidence only prejudiced Mr. Kims, by tending to show bad character or a propensity to commit the crimes charged (see People v Giles, 11 NY3d 495, 500 [2008]; People v Lewis, 69 NY2d 321, 325 [1987]). “Here, the admission of the disputed evidence constituted little more than an invitation to convict the defendant based upon the speculation that he was a drug dealer who, in such capacity, would have been a likely possessor of drugs” (People v Franklin, 190 AD2d 501, 503 [1st Dept 1993], lv denied 81 NY2d 885 [1993]). As such, it was an abuse of discretion for the trial court to admit the evidence, and the Appellate Division should have said so (see People v Givans, 45 AD3d 1460, 1462 [4th Dept 2007]). In addition, the trial court erred in allowing evidence of the uncharged attempted escape as proof of consciousness of guilt. Such proof may be allowed when “it bears on the motive and state of mind in relation to an avoidance of apprehension during immediate flight from a crime and is found to be needed as background material or to complete the narrative of the episode” (People v Tillman, 87 NY2d 835, 837 [1995]), and even then such evidence is admissible only when a trial court finds that its probative value for the jury outweighs the risk of undue prejudice to the defendant (id. at 836). None of the factors identified by this Court of Appeals in Tillman was present in this case. Mr. Kims was not trying to avoid apprehension during immediate 48 flight from a crime: he had reported to the Probation Department of his own accord, and was being transported from there. The evidence was also not needed as background material or to “complete the narrative” of the drug possession charges at issue in this case; those charges had arisen on April 12, 2010, and the attempted escape did not occur until November 4, 2010 (Tr. 701-703; P.A. 517-519). Because the evidence had no probative value to outweigh the undue prejudice that its admission caused Mr. Kims, it should never have been admitted. The cumulative effect of the admission of all of this evidence was to cause such enormous prejudice that it cannot be excused as harmless error on appeal (see People v Arafet, supra, 13 NY3d at 473-474 [Ciparick, J. dissenting]; cf. People v Rivers, 18 NY3d 222 [2011]). This is particularly true in light of the prosecutorial misconduct committed in this case, as set forth IN Point Four, below. 49 POINT THREE: EVIDENCE FOUND INSIDE THE RESIDENCE ON LERAY STREET SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS SEIZED DURING A WARRANTLESS “PROTECTIVE SWEEP” BY POLICE. As set forth above, Detective McNitt concluded to himself that Jeffrey “Chino” Fineout might be inside the premises at LeRay Street, after Mr. Kims and Sawyer had already been arrested and handcuffed outside the premises, because Mr. Kims kept yelling “Call Chino” to anyone within earshot. Detective McNitt decided to conduct a “protective sweep” of the premises before obtaining a search warrant, purportedly to preserve evidence and protect the safety of persons present. This was an insufficient basis for the “protective sweep.” “As a precautionary matter, officers may conduct a ‘protective sweep’, a quick limited pass through spaces immediately adjoining the place of arrest” (People v Bost, 264 AD2d 425, 426 [2d Dept 1999], citing, inter alia, Maryland v Buie, 494 US 325, 334 [1990]). “To justify entry into an apartment, an officer must possess ‘articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene’” (Bost, 264 AD2d at 426, quoting Buie, 494 US at 334; see also People v Wheeler, 2 NY3d 370, 373 [2004] [if the circumstances 50 of a case do not involve “persons who, in hiding, posed a danger to the officers at the scene of the arrest, Buie and its progeny do not apply”]; People v Harper, 100 AD3d 772, 774 [2d Dept 2012], lv denied 21 NY3d 943 [2013]). In Bost, the Second Department held that an officer was not justified in entering the defendant’s apartment based on speculation that the defendant’s roommate might be home and might pose a threat to officer safety, after the defendant had already come outside the apartment, been arrested, and was being guarded by four to five other officers in the backyard (264 AD2d at 426), even though the officers knew that the defendant had a roommate allegedly connected with other homicides unrelated to the drive-by shooting for which they were arresting the defendant (id. at 425). Accordingly the court reversed the judgment of conviction and granted the defendant’s motion to suppress the drugs that were seized during the warrantless sweep. With respect to this issue in Mr. Kims’ case, the Appellate Division held only that, “[c]ontrary to defendant’s contention, the [trial] court properly refused to suppress evidence seized from his apartment subsequent to a warrantless protective search (see People v Lasso-Reina, 305 AD2d 121, 122 [1st Dept 2003], lv denied 100 NY2d 595 [2003]; see generally People v Bost, 264 AD2d 425, 426” 51 (96 AD3d at 1598).2 In Lasso-Reina, the First Department had affirmed the denial of a suppression motion, holding that the need for a security sweep of a house was not diminished by the fact that the drug defendant had already been arrested in his back yard, because the drug conspiracy was known to have many participants, there were windows from which shots could be fired at police, and the defendant’s stepdaughter had told police that someone was hiding in an upstairs closet. Mr. Kims submits that the factors present in Lasso-Reina were not present in his case, where there was no factual predicate from which Det. McNitt could infer that there was a person who posed any sort of threat to the officers or the people who had begun to gather outside. The officers were not investigating a report of weapons on the premises or an imminent threat of violence (cf. Ryburn v Huff, 565 US ___, 132 S Ct 987, 990-991 [2012]) and had not heard voices or seen people inside the house (cf. People v Boyland, 79 AD3d 1658 [4th Dept 2011], affd 20 NY3d 879 [2012]; People v McAllister, 35 AD3d 300 [1st Dept 2006], lv denied 8 NY3d 925 [2007]). They cannot base the protective sweep on Mr. Kims’ actions after he was arrested; to the contrary, if Mr. Kims was yelling to bystanders to “call Chino,” the logical 2 On a related issue, the court further held that Mr. Kims had abandoned his contentions that evidence seized from his vehicle and his apartment should have been suppressed because the parole officers improperly acted as conduits for, or agents of, the police (96 AD3d at 1598). 52 inference would seem to be that Chino was somewhere else rather than inside the premises. On the other hand, had Mr. Kims been looking directly at the premises and calling out to “Chino” directly, it may have been proper to infer that Chino was inside the premises. Although some courts (including the Second Department in Bost) have also included the need to preserve evidence as a justification for a protective sweep, this Court’s holding in Wheeler (supra, 2 NY3d at 373) makes clear that officer safety is the only justification for a protective sweep. This Court does not appear to have used exigent circumstances/evanescent evidence cases such as People v Clements (37 NY2d 675 [1975], cert denied sub nom Metzger v New York, 425 US 911[1976]) to support warrantless protective sweeps, and should not do so here. Nevertheless, even assuming arguendo that the need to preserve evidence could be another basis for a protective sweep, there was no reasonable basis for Det. McNitt to assume that there was evidence inside the apartment that was threatened with imminent destruction in this case. Other than a statement by an informant to Det. McNitt two weeks earlier that he had heard Mr. Kims had a stash house on LeRay Street, there is nothing to suggest that there would have been any evidence in the house on April 12 that needed to be preserved, or that there were any co-conspirators inside who might destroy it (see People v Coles, 105 AD3d 1360, 1363 [4th Dept 2013]). 53 Moreover, this was not a case such as Clements. In that case, an informant purchased three marijuana cigarettes inside a residence, and informed the police (who were waiting outside) that there were bricks of marijuana in a dresser drawer inside the residence (37 NY2d at 676-677) and that “the sellers might have become suspicious of what was afoot” (id. at 679). The police arrested the defendant inside the residence, and found marijuana in the dresser where the informant said it would be. By contrast, when Detective McNitt decided to do the protective sweep in this case, Mr. Kims was already under arrest, and there was no such evidence that other sellers were inside and suspicious that the police were outside. The only evidence of drugs in the apartment was the statement by an informant to Det. McNitt two weeks earlier. Thus, in this case, “any urgency was gone” (People v Knapp, 52 NY2d 689, 696 [1981]). Nor is this a case such as People v Kelly (supra, 261 AD2d 133 [1st Dept 1999], lv denied 94 NY2d 824 [1999]). In Kelly, an undercover officer had just bought drugs from the defendant’s girlfriend outside of the apartment that she shared with the defendant, and “the seller had entered the subject apartment to access her drug supply before consummating the sale,” which gave the police “probable cause to believe that crack cocaine was still being sold from the apartment” (261 AD2d at 133). When Detective McNitt decided 54 to do the protective sweep in this case, there was no such probable cause to suggest that there were any drugs remaining in the apartment.3 Thus, the most closely analogous case to Mr. Kims’ case remains the decision of the Second Department in Bost. Here, as in Bost, there was no evidence of a threat to police from inside the premises and the police had the suspect handcuffed outside of the residence. As the Second Department did in Bost, the Fourth Department should have reversed the judgment of conviction and granted Mr. Kims’ motion to suppress the drugs that were seized during the warrantless sweep. 3 With respect to the issue referenced in footnote 2, above, it makes no difference that the parole officers (rather than the Watertown police officers) might have had authority to conduct a warrantless search of the premises themselves, under cases such as People v Huntley (43 NY2d 175 [1977]) and Samson v California (547 US 843 [2006]). Whether or not a warrantless search of the premises by the parole officers might have been justified is irrelevant: the parole officers here chose not to avail themselves of that option, and the members of the Watertown Police Department cannot now justify their warrantless sweep by “exploiting” the status of Mr. Kims as a parolee and using the parole officers as “a conduit of the police officer in doing what the officer could not do himself” (People v Candelaria, 63 AD2d 85, 90 [1st Dept 1978]). 55 POINT FOUR: THE CONVICTION MUST BE SET ASIDE AND A NEW TRIAL GRANTED BECAUSE OF PROSECUTORIAL MISCONDUCT. For reasons similar to those set forth in Points One and Two, above, the conviction must be reversed and a new trial must be granted on all of the counts of the indictment because of prosecutorial misconduct in this case. Whether or not the prosecution presented enough evidence to convict on a theory of constructive possession, it is impossible to tell whether the jury’s verdict in this case was based upon improperly-presented evidence such as alleged gang membership, bolstered informants’ testimony, and association with persons being investigated by the Drug Task Force. In a recent appeal from a judgment of the same trial court, the Fourth Department reversed a judgment of conviction because the cumulative effect of the instances of prosecutorial misconduct required reversal. In People v McClary (85 AD3d 1622 [2011]), the prosecutorial misconduct included the eliciting of testimony from Watertown detectives who vouched for the credibility of informants (85 AD3d at 1623). Here, the prosecutor admitted that Det. Golden had done the same thing with respect to Kenneth Mallette, when the prosecutor told the jury in summation that “Detective Golden made it very clear that Kenny has been providing the Task Force with reliable information for the better part of many years. He told you that when Kenny 56 provides him with information, it proves to be reliable” (Tr. 1127; P.A. 943). In addition, it was the prosecutor himself who vouched for the credibility of Andre Tillman during summations, asking why Tillman’s truthfulness would even need to be called into question, and arguing that “he told you the truth because he was under oath” (Tr. 1124-1125; P.A. 940-941). Bolstering of an informant’s testimony by police witnesses, and references to it by prosecutors in summation, have long been held to be improper (see People v Bryant, 77 AD2d 603 [2d Dept 1980]; People v Jackson, 40 AD2d 1006 [2d Dept 1972]). Moreover, not only was there improper bolstering in Mr. Kims’ case -- even more prejudicial was the prosecutor’s repeated elicitation of inflammatory testimony, and argument during summations, that Mr. Kims was then (or had at one time been) a member of the Crips gang (Tr. 770-771, 819, 1133; P.A. 586-587, 635, 949). Even if true, the testimony had no probative value on the questions of intent or possession that were at issue in this case, and was used only to bolster improperly the testimony of two of the prosecution’s informants that they were afraid of Mr. Kims. A prosecutor’s questions pertaining to gang membership are improper when there is no connection between gang membership and the alleged crimes (see People v Acevedo, supra, 84 AD3d at 1391; People v Stewart, supra, 92 AD2d at 229; compare People v Polk, 84 AD2d 943, 945 [4th Dept 1981]). “It can only be 57 concluded that this testimony was deliberately elicited to prejudice defendant before the jury” and, coupled with the error by the court in admitting that testimony, Mr. Kims was denied a fair trial (People v Gadsden, 80 AD2d 508, 508 [1st Dept 1981]; see also People v Livingston, 128 AD2d 645 [2d Dept 1987]). In addition, it was misconduct for the prosecutors to continually elicit testimony and try to portray Mr. Kims as a “large-scale drug dealer” (People v Bryant, supra, 77 AD2d at 604; People v McMillan, 66 AD2d 830 [2d Dept 1978]; see also People v Burke, 170 AD2d 1021 [4th Dept 1991], lv denied 77 NY2d 959 [1991]). Such actions “could have had no other effect than to ‘arouse the emotions of the jurors and prejudice them against the defendant’” (McMillan, supra, 66 AD2d at 830 [citation omitted]). “Such conduct encourages the jurors to convict, not on the basis of guilt beyond a reasonable doubt, but because they, as citizens, must do their duty and place ‘large scale dealers’, whose money supports other crimes, in jail” (id.). Nevertheless, in Mr. Kims’ case, the Appellate Division did not address those specific instances of misconduct, concluding only “that any alleged [prosecutorial] misconduct was not so pervasive or egregious as to deprive defendant of a fair trial” (96 AD3d at 1598 [internal quotation marks and citations omitted]). That decision flies in the face of a decision handed down 58 by this Court which makes it clear that prosecutorial misconduct on summation alone can be reversible error, even when defense counsel does not object to it. In People v Fisher (18 NY3d 964 [2012]), this Court decided that the prosecutor committed misconduct in summation that included bolstering the victims’ credibility by referring to prior consistent statements that the victims had made which were not in evidence (18 NY3d at 966). The Court noted that, “the trial’s outcome turned entirely on the jury’s resolution of fairly pronounced witness credibility issues. Those issues should have been resolved by the jury dispassionately on the basis of the properly admitted evidence. The prosecutor’s summation, however, directed the jury’s attention elsewhere . . . .” (18 NY3d at 966). In this case, too, the issue of Mr. Kims’ guilt or innocence “should have been resolved by the jury dispassionately on the basis of the properly admitted evidence,” not on the basis of bolstered testimony and inflammatory evidence such as gang membership and association with people under investigation for drug dealing. 59 CONCLUSION For the reasons set forth above, Mr. Kims’ conviction must be reversed in its entirety, and the entire case sent back for a new trial. Dated: October 14, 2013 Respectfully submitted, _________________________ Mark C. Davison, Esq. Davison Law Office PLLC P.O. Box 652 Canandaigua, New York 14424