The People, Appellant-Respondent,v.Stanley R. Kims, II, Respondent-Appellant.BriefN.Y.September 11, 2014To Be Argued By: HARMONY A. HEALY Time Requested: 15 Minutes APL-2013-00095 Jefferson County Indictment No. 255-10 Oiourt of J\ppcals STATE OF NEW YORK ••• THE PEOPLE OF THE STATE OF NEW YORK, Appellant-Respondent, -against- STANLEY R. KIMS, II, Respondent-Appellant. BRIEF FOR APPELLANT-RESPONDENT Harmony A. Healy Assistant District Attorney of Counsel Date completed: August 9, 2013 CINDY F. lNTSCHERT DISTRICT ATTORNEY, JEFFERSON COUNTY 175 Arsenal Street Watertown, New York 13601 Telephone: (315) 785-3053 Facsimile: (315) 785-3371 Attorney for Appellant-Respondent RULE 500.13(a) RELATED LITIGATION STATEMENT As of August 7, 2013, there are no criminal prosecutions against Stanley R. Kims, II pending in Jefferson County. There are no codefendants in this case, and the Jefferson County District Attorney's Office is not aware of any other pending . litigation related to the matter before this Court. People v. Kims (APL 2013-00095) APPELLANT'S BRIEF TABLE OF CONTENTS 'l'J\.11L.E: ()F' J\.lJ'l'll()Jll'l'I.E:S ...................................................... 2 J>~LilVIINJ\.11.'\' S'I'J\.'I'.E:lVl.E:N'I'................................................ 3 S 'I' J\. 'I'.E:lVl.E: N'I' () F' F' J\. C'I'S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Background..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Trial............................................................................... 6 The People's Proof................................................................ 6 The Defense Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Charge, Deliberations, and Verdict.............................................. 14 Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 The Appeal to the Appellate Division ............................................. 16 QlJ.E:S'I'I()NS J>~S.E:N'I'.E:D ........................................................ 18 J>() IN'I' I ................................................................................. 19 The trial court did not err in instructing the jury as to the permissive "drug factory presumption" authorized by Penal Law § 220.25 (2). J>()IN'I' II ............................................................................... 25 Even if the trial court erred in charging the "Drug Factory Presumption", the error should be deemed harmless in light of the overwhelming evidence of defendant's guilt of Criminal Possession of the cocaine charged by the top two counts of the indictment. C()NCLlJSI()N ........................................................................ 32 1 Table of Authorities Page(s) Cases: People v. Alvarez, 8 A.D.3d 58 (1st Dept. 2004) ..................... ,,. . . . . . . . . 21, 23 People v. Becoats, 17 N.Y.3d 643 (2011)...................................... ... 28 People v. Coleman, 26 A.D.3d 773 (4th Dept.. 2006). .. . .. .. . ..... ... . .. .. . ... 19 People v. Crimmins, 36 N.Y.2d 230 (1975) ....................................... 25, 28 People v. Daniels, 37 N.Y.2d 624 (1975) .......................................... 19, 21 22,24 People v. Edwards, 23 A.D.3d 1140 (4th Dept.. 2005).... .. . . ..... .. . .. . . . .. .. 19, 20 People v. Giordano, 87 N.Y.2d 441 (1995)....................................... 27-28 People v. Hayes, 175 A.D.2d 13 (1st Dept.. 1991). .. . . ... . .. ... .. .... ... .. . . ... 19 People v. Kelly, 261A.D.2d133 (1st Dept.. 1999)... .. . ... . .. ..... ... ... .. . .. . . 21- 24 People v. Kims, 96 A.D.3d 1595 (4th Dept.. 2012).. .. . .. . . ... ......... .. .. . .... 5, 6 17,19 25 People v. Maldonado, 189 A.D.2d 737 (1st Dept.. 1993)..................... 19 People v. Martinez, 83 N.Y.2d 26 (1993) .......................................... 25-27 30 People v. Miranda, 220 A.D.2d 218 (1st Dept.. 1995)... ... ... ... ... ... ... .... 19 People v. Riddick, 159 A.D.2d 596 (2nd Dept.. 1990)....................... ... 19 People v. Rosado, 96 A.D.3d 547 (1st Dept.. 2012).... .. . . . .... ... ... ... .. . .... 20 People v. Santiago, 243 A.D.2d 328 (1st Dept.. 1997). ... ..... ....... ... . .. . . 21, 22 Statutory Authority Penal Law §220.25(2).............................................................. .. 19- 21 24,26 30-31 2 PRELIMINARY STATEMENT The Jefferson County District Attorney's Office, on behalf of the People of the State ofNew York, appeals from the partially adverse, June 12, 2012 Memorandum and Order of the Appellate Division, Fourth Department, modifying the judgment of conviction rendered against defendant Stanley R. Kims, following a trial by jury in the Jefferson County Court (Kim H. Martusewicz, J.), on March 28, 2011. The 4-1 majority modified the judgment by reversing defendant's conviction of one count each of Criminal Possession of a Controlled Substance in the First and Third Degrees (PL§§ 220.21 [l], 220.16 [1]) and granting a new trial of those first two counts of the indictment. The Appellate Division unanimously affirmed the remaining convictions of Criminal Possession of Marihuana in the Second Degree (PL § 221.25) and Criminally Using Drug Paraphernalia in the Second Degree (PL § 221.50[2] and [3], 1 count each). People v. Kims, 96 A.D.3d 1595 (4th Dept. 2012). By Certificates dated April 24, 2013, Hon. Robert R. Smith, Associate Judge of this Court, granted both parties' CPL §460.20 applications for leave to appeal 3 from the Fourth Department's order. 1 People v. Kims, 21N.Y.3d913(2013) (table). Defendant presently is serving his 3-year prison sentence on the extant Criminal Possession ofMarihuana in the Second Degree conviction at Ogdensburg Correctional Facility; he is scheduled to be released from that facility on August 12, 2013, subject to a period of post- release supervision that will expire on or about December 16, 2015. The Jefferson County Court has scheduled October 18, 2013 as the next conference date concerning the Criminal Possession counts now awaiting retrial and has fixed bail at $30,000 cash or $60,000 surety bond. 1 The People (the first to file a leave application) have been designated as the appellant- respondent in the cross-appeals now before this Court. 4 STATEMENT OF FACTS Background Defendant Stanley Kims was indicted in May 2010 for Criminal Possession of a Controlled Substance in the First Degree [PL §220.21 (1)] and other drug-related offenses, predicated on the April 12, 2010 recovery of more than 12 ounces of cocaine, with a street value of approximately $36,000 and the police seizure of nearly 3 pounds ofmarihuana, worth approximately $15,000 on the open market. A 1-3 2, A 425. Defendant moved to suppress all the physical evidence recovered from inside-around his car and inside the duplex apartment he had surreptitiously rented without the knowledge and approval of his parole officer. The Jefferson County Court denied the motion, following a hearing, by decision and order dated December 20, 2010. A 8-112. Having rejected the People's final offer of a plea agreement that would have required him to plead guilty to Criminal Possession of a Controlled Substance in the Second Degree, defendant proceeded to trial on January 31, 2011. 2 Numbers preceded by A refer to the pages of the sequentially-paginated Appendix volumes filed herewith. 5 The Trial The People's Proof JUD EE KELLEY3 showed the vacant, ground floor unit of the duplex she owned at XXX LeRay Street4 in Watertown, New York, to defendant on February 26, 2010. He immediately agreed to take the apartment, and produced $1300 in cash for the security deposit before signing the month-to-month lease agreement. A 209. Prior to leasing the residence to defendant, the apartment was "immaculately clean". A 206. Defendant, who had been living at YYY Olive Street5 in Watertown since his release from state prison six months earlier, did not seek Parole approval for a change of residence to the LeRay Street apartment either before or after signing the lease. A 252. After signing the lease, Ms. Kelly had numerous conversations regarding defendant's interest in purchasing the building and his ability to make a $20,000 cash down payment. A 214. Photographs of the text messages evidencing these discussions between Kelly and defendant were entered into evidence. A 1115. 3 The use of all capital letters in the first reference to a person in this narrative indicates that he or she was a witness at trial. 4 XXX is being used instead of the actual house number in order to comply with Rule 500.S(d)'s requirement that "sensitive information" - such as "exact street addresses" - be omitted from documents filed with the Court. 5 YYY is in lieu of the exact address. 6 In early April 2010, DETECTIVE JAMES McNITT, a 14-year veteran of the Watertown City Police Department and a member of the Metro Jefferson Drug Task Force, received word that defendant was operating a "stash house" at the LeRay St. address.6 A 389, 392. The detective observed defendant leave that property by the front door and get into an SUV registered in defendant's name, but listing the Olive Street address; two days later (on Saturday, April 10), Detective McNitt was able to speak with Ms. Kelley, who told him that defendant was indeed the lessee of the premises. A 393, 394, 396. Detective McNitt telephoned NYS PARO LE OFFICER PA TRICK GLENNON Monday morning, April lih, to advise him of the possibility of defendant's alternate residence. A 396. Glennon, along with fellow Parole Officers CHRISTOPHER LA WREN CE and MATTHEW MULLIN, went to stake out XXX LeRay Street, arriving there at approximately 11 :00 that morning. A 334, 397, 620. Shortly after noon, in the company of another man subsequently identified as ROBERT SA WYER, defendant emerged from the front door of the residence, walked directly to his vehicle, and got behind the wheel, with Sawyer entering via the front passenger door. A 234, 259, 336, 374. The short distance from the front 6 Kenneth Mallette would later testify that he relayed the tip to the Drug Task Force (T 792). 7 door to defendant's vehicle parked on the side is shown in the photograph admitted as People's Exhibit 15. A 1066. As the two men seated themselves, parole officers surrounded the vehicle and demanded that defendant and Mr. Sawyer show their hands and exit the vehicle. A. 260, 374, 375. Despite these repeated requests, defendant and Sawyer continued to fumble in and around the console between the driver's seat and the front passenger seat. A 261, 339-40, 374. Defendant then shifted the vehicle into reverse, but was prevented from leaving the scene because the parked Parole vehicles blocked his egress. A 258-69. After a stand-off that lasted approximately 45 seconds, with the parole officers having drawn their guns, Robert Sawyer exited the vehicle and then defendant exited through the passenger side door of the vehicle; both men were handcuffed, frisked, and their clothing was searched. A 262-68, 347, 375. Several packages of cocaine were found on Mr. Sawyer, on the ground by the passenger side of the vehicle, and wedged between the center console and the passenger seat. A 268-69, 348, 375. Parole Office Glennon contacted Detective McNitt, and members of the task force arrived on the scene within 3-5 minutes. A 269. An aggregate of just under 3 ounces of cocaine was discovered in and around defendant's vehicle, and on the person of Robert Sawyer. A 753-57. Photos of all packages recovered were admitted into evidence at trial, as were the packages 8 themselves. A 1046, 1048, 1050, 1052. Several bystanders appeared almost simultaneously with the arrival of the police, and defendant began to yell repeatedly, "Call Chino, call Chino". A 402. When questioned by Detective McNitt, defendant averted his eyes and fell silent. Concerned that defendant was seeking to alert someone inside the premises, McNitt organized a protective sweep of the residence. A 402-03. A man, who identified himself as Jeffrey Fineout to DETECTIVE RONALD GATCH of the Watertown Police Department, was discovered asleep on the living couch. A 404, 509, 1078. Fineout stated that the residence belonged to defendant and that he had only been there overnight. A 516. No other people were in the two bedroom apartment. A 510. As evidenced in People's Exhibit 9, a large, clear bowl with what proved to be several ounces of cocaine was in plain view on the kitchen counter. A 1058. Also in plain view on the kitchen counter - and depicted in People's Exhibits 19 and 20 - were scales, a heat sealer, a blender covered in residue, a cutting agent called Inositol Powder, glassine envelopes, and cookware covered in a white powder residue. A 404-05, 493, 1074, 1076. DETECTIVE JERRY GOLDEN of the Watertown City Police Department testified that, in his expert opinion, these items are associated with the packaging and distribution of narcotics. A 481. 9 Defendant, Jeffrey Fineout, and Robert Sawyer were formally placed under arrest and transported to the Public Safety Building. A 498, 505, 513. As defendant was being formally booked by Gatch, he gave permission to the task force to tum the keys over to his mother, Rhonda Atkinson. A 514. A warrant authorizing searches of both the residence and the vehicle was obtained and executed shortly thereafter with the assistance of a canine officer. A 410, 476. As depicted in People's Exhibit 9 the task force recovered two large trash bags containing approximately 3 Yz pounds of marijuana in a bedroom closet of the apartment. A 1056. A copy of the signed lease, a National Grid bill in defendant's name - and $24,000 in cash-were stashed in a safe in that same bedroom. A 392, 410. The National Grid bill as well as the signed lease and photos of the cash were entered into evidence. A 1044, 1089, 1104. A search of the kitchen cupboards yielded approximately 6.8 ounces of cocaine in addition to the almost 3 ounces found in plain view on the counter. A 410-25. McNitt testified that the total street value of all the recovered cocaine was approximately $36,000 and the street value of the marihuana was approximately $15,000. A 425. McNitt also described text messages found on defendant's phone that, based upon his training and experience, indicated that defendant was involved in drug trafficking. A 427-35. Finally, he stated that this was the largest drug bust that he 10 had seen in his experience, and the quantity of drugs served to confirm his information that this was a stash house. A 443. After the search warrant was executed, the premises were turned back over to Ms. Kelly. A 210. In securing and inspecting the residence, Kelly found several personal items of defendant including a pay stub and jewelry certificate bearing his name. A 211. She further discovered a coffee grinder filled with a white powder residue. A 211. She also described the sparsely furnished apartment with the only furniture being a love seat a couch, and a blow up mattress. A 224. In addition to the NYS Parole officers and local law enforcement personnel, three friends/confederates of defendant testified for the People. ANDRE TILLMAN had known defendant for a few years before defendant's April 2010 arrest and also was defendant's upstairs neighbor at LeRay Street. He told the jury that he had seen defendant coming and going from the apartment regularly. A 728. KENNETH MALLETTE had known defendant for approximately 15 years, and he began purchasing narcotics from him in 2004-2005. A 577. In 2009, Mallette approached defendant and proposed a business relationship with Shawn Granger wherein defendant and Mr. Granger would exchange cocaine for Marijuana. A 584. He further testified that while they were jointly incarcerated, defendant bragged of his drug organization, which Jeffrey was running while 11 defendant was in prison, and that Mallette had personally witnessed Jeffrey Fineout sell drugs for defendant. A 585, 592. Finally, he stated that in March 2010, defendant boasted to him that he had a "stash house" on LeRay Street, and that he passed the information along to the Metro Jefferson Drug Task Force. A 608. ROBERT SA WYER, defendant's cousin, had known him from early childhood. A 622. He had reconnected with defendant in New York City in the beginning of 2007, and over the course of that week, Sawyer personally witnessed defendant execute four to five drug transactions. A 626. After moving to Watertown in 2008, Sawyer himself regularly purchased or received drugs from defendant. He often witnessed defendant making drug transactions and also preparing the drugs for sale. A 631-32. He testified that defendant was the head of a drug organization with several people working beneath him, and that he had seen defendant receive substantial profits. A 634. He stated that he had made several runs with Jeffrey Fineout to receive the drugs, and that he knew they were doing the runs for defendant. A 731. He also stated that defendant utilized Jeffrey Fineout to make the runs because he was a college student who was not on parole, and as such, less likely to draw suspicion. A 731. When Sawyer arrived at the LeRay Street address on April 12, 2010, he knocked on the door and Jeffrey Fineout answered. A 638. Defendant was in the 12 kitchen area and remained there for approximately 15 minutes; when defendant emerged, he sold Sawyer $50 worth of cocaine that he retrieved from the kitchen. A 639. Sawyer added that when he then entered defendant's vehicle, defendant passed him all of the narcotics found on Sawyer's person, with the exception of amount Sawyer had just purchased. A 641. Finally, Sawyer described multiple bribes and threats by defendant, who was attempting to prevent him from testifying. A 651-87. VANCE TRAPP, Evidence Technician for the Watertown City Police Department, and JOHN PIERCE, a Forensic Scientist at the New York State Police Crime Laboratory System, testified to the chain of custody and testing of the marihuana and cocaine. A 731-69. Pierce testified that he was working at the State Police Lab in May of 2010, and that he received 9 heat-sealed bags from the City of Watertown Police Department. A 7 45. All the samples of suspected cocaine tested positive for the presence of cocaine, and all were admitted into evidence. A 749-62. All submitted samples of suspected marihuana tested positive for marihuana, and these too were received into evidence. A 762-69. The defense case Defendant himself did not take the stand, but his stepfather, WILLIAM CARRIGAN, told the jury that defendant was living at the Olive Street residence in 13 March and April of2010. A 867-95. Charge, deliberations, and verdict Prior to summations, a charging conference was held wherein the People asked the court, in pertinent part, to instruct the jury on the possessory presumption set forth in Penal Law §§220.25(2). A 797. After hearing arguments from both sides and over objection from defense counsel, the court determined that it was proper to so instruct the jury, reasoning that there had been testimony by Mr. Sawyer that defendant had just left the room where the narcotics were located. A 797-802. Consequently, the trial court later advised the jury, in conjunction with the Criminal Possession counts at: Under our law, the presence of a narcotic drug or preparation in open view in a room under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare that substance for sale is presumptive evidence of knowing possession of that substance found by each and every person in close proximity to it at the time the substance was found. What that means is if the people have proven beyond a reasonable doubt that the cocaine was in open view in a room and that the circumstances were such as to evince an intent, that is a conscious objective or purpose, to unlawfully mix, compound, package or otherwise prepare the cocaine for sale, then you may, but are not required to, infer from that fact that each and every person in close proximity to the cocaine at the time it was found was in knowing possession of it. Whether or not to draw that inference is for you to decide entirely on your evaluation of the evidence. A 1022, 1024 14 The court further instructed the jury, with respect to each count of the indictment, as to constructive possession: "Under our law, a person has tangible property in his or constructive possession when that person exercises a level of control over the area in which the property is found or over the person from whom the property is seized sufficient to give him or her the ability to dispose of the property." A 1011, 1015, 1019, 1023. The court also instructed the jury regarding the evidence they had heard of the defendant's prior bad acts, cautioning them that the evidence was not offered to prove propensity or predisposition, but was to be considered only for questions on motive, intent, absence of mistake, or to show a common plan or scheme. A 1006. After deliberations, the jury returned with a verdict convicting defendant of all five counts in the indictment. A 103 7. Sentencing On March 28, 2011, the Jefferson County Court sentenced defendant, as a second felony offender, to a 16-year prison term, to be followed by 5 years post-release supervision, upon his conviction of the top count of Criminal Possession of a Controlled Substance in the First and Third Degrees. He was sentenced to a concurrent 3-year prison term (and 2 years post-release supervision) 15 on the Criminal Possession of Marihuana in the Second Degree conviction, and concurrent, I -year terms on the remaining 2 counts of Criminal Possession of Drug Paraphernalia in the Second Degree. The Appeal to the Appellate Division Upon defendant's appeal to the Appellate Division, Fourth Department, the divided panel reversed the top counts of Criminal Possession of a Controlled Substance in the First Degree and Criminal Possession of a Controlled Substance in the Third Degree, but affirmed the convictions for Criminal Possession of Marihuana in the Second Degree and Criminally Using Drug Paraphernalia in the Second Degree. People v. Kims, 96 A.D.3d 1595 (4th Dept. 2012). The majority determined that the "drug factory presumption" instruction should not have been charged to the jury because, in those Justices' view, defendant was not in sufficiently close proximity to the drugs found in open view in the residence. Declining to apply harmless error analysis, the majority ordered a new trial of the Criminal Possession counts of the indictment. 96 A.D.3d at 1595-97. Presiding Justice Scudder dissented, reasoning that because there was drug packaging and paraphernalia in plain view in the kitchen area of the apartment and law enforcement had observed the defendant walk directly from the apartment to his vehicle just minutes prior to the search, the trial court properly gave a PL §220.25(2) 16 instruction. 96 A.D.3d at 1599-1601. 17 QUESTIONS PRESENTED (1) Did the trial court err in instructing the jury as to the permissive "drug factory presumption" authorized by Penal Law§ 220.25 (2)? (2) Even ifthe trial court erred in charging the "drug factory presumption", should the error be deemed harmless in light of the overwhelming evidence of defendant's guilt of Criminal Possession of the cocaine charged by the top two counts of the indictment? 18 POINT I. The Trial Court Did Not Err In Instructing The Jury As To The Permissive "Drug Factory Presumption" Authorized by Penal Law §220.25(2). The State Legislature has provided that where drugs are found in open view in a room under circumstances evincing an intent to sell, these facts provide presumptive evidence of knowing possession of each and every person within "close proximity" to the drugs. Penal Law §220.25(2); People v. Daniels, 37 N.Y.2d 624 (1975); People v. Hayes, 175 A.D.2d 13 (1st Dept. 1991); People v. Coleman, 26 A.D. 3d 773 (4th Dept. 2006); People v. Coleman, 26 A.D.3d 773 (4th Dept. 2006). What constitutes "close proximity" is not fixed by the statute and will necessarily be made on a case-by-case basis, but there is no requirement that the defendant be apprehended in the same room as the one where the drugs are found. E.g., People v. Miranda, 220 A.D.2d 218 (1st Dept. 1995); People v. Maldonado, 189 A.D.2d 737 (1st Dept. 1993); People v. Riddick, 159 A.D.2d 596 (2nct Dept. 1990). In reversing the Criminal Possession of a Controlled Substance convictions here, the majority below cited to People v. Edwards, 23 A.D.3d 1140 (4th Dept. 2005). People v. Kims, 96 A.D.3d 1595, 1597 (4th Dept. 2012). But although the People are prepared to agree that the presumption instruction should not have been given to the Edwards jury, Edwards analysis should not prompt this Court to affirm 19 the Fourth Department's reversal ofKims' convictions. In Edwards, the police found a bag of cocaine at the top of a staircase leading to an apartment where Edwards and three children were found in the rear of the residence; upon entering the apartment, the police observed drug packaging paraphernalia - but no drugs - in open view inside the apartment. 23 A.D.3d at 1141. Given these circumstances, it is not surprising that the Fourth Department concluded that the jury should not have been given a §220.25(2) because (a) "the controlled substance was not 'in open view in a room"', and (b) Edwards "was not in 'close proximity to such controlled substance at the time such controlled substance was found'." 23 A.D.3d at 1142. In the instant case, however, both the cocaine and drug packaging materials were found in plain view inside an apartment in which defendant had the sole proprietary interest, and which bore all the trappings of a "drug factory"; moreover, defendant was apprehended steps away from the front door. This case is exactly the type of scenario the legislators envisioned when enacting the drug factory presumption, and why the First Department has declared, "The underlying purpose of the drug factory presumption is to hold criminally responsible those participants in a drug operation who may not be observed in actual physical possession of drugs at the moment the police arrive." People v. Rosado, 96 A.D.3d 547, 548 (1st Dept.. 2012). 20 In People v. Alvarez, 8 A.D.3d 58 (1st Dept. 2004), police observed the defendant enter a building. When they subsequently approached the building, they heard noises emanating from outside and discovered Alvarez attempting to climb a fence with injuries consistent with his jumping out of the window. Although the police did not apprehend Alvarez inside the apartment where narcotics were found in open view, and had not actually witnessed his escape from the apartment window, the First Department ruled that the delivery of a §220.25(2) instruction was wholly proper. The First Department also held in People v. Kelly, 261 A.D. 2d 133 (1st Dept.. 1999), that the presumption applied in a situation where the defendant was located in a completely separate apartment. After conducting an undercover controlled purchase of narcotics, the police did a protective sweep of both apartments finding the defendant in one, and a substantial amount of cocaine in the second. The First Department affirmed, holding that "the use of the apartment to store drugs prepared in connection with contemporaneous sales down the hallway was sufficient to support the jury instruction on the presumption". 261 A.D.2d at 134. The defendant in People v. Santiago, 243 AD2d 328 (1st Dept. 1997), was convicted of Criminal Possession of a Controlled Substance in the First and Third Degrees after the jury was presented with police testimony that the drugs and 21 paraphernalia were in open view in a room and the defendant was in close proximity to them. The First Department declined to reverse these convictions, noting the People were under no additional obligation to prove that Santiago actually saw the drugs or was in the same room with them. This Court too has expounded upon circumstances in which the drug factory presumption is available. In People v. Daniels, 37 N.Y.2d 624 (1975), the defendant and his codefendant were observed leaving an apartment that was under surveillance. The police arrested the defendant and his accomplice, entered the apartment, and discovered a large supply of narcotics on the kitchen table in the presence of two other codefendants. The defendant's accomplice testified at trial that he was the defendant's partner in the drug trade and that two of the other codefendants were employees. 37 N.Y.2d at 624, 628. Although the issue in Daniels was whether the accomplice's testimony was adequately corroborated by outside evidence, this Court held that the drug factory presumption would have applied as it was Daniels' apartment and he was observed leaving it prior to his arrest. Id. at 630. As in Daniels, Kelly, and Santiago, although Kims was not apprehended in the apartment where the drugs were found in open view, he was observed exiting the apartment by law enforcement and apprehended seconds later, mere feet away from 22 the exit. A 259, 336, 374. Furthermore, People's Exhibit Fifteen shows the short distance of defendant's walk between the front exit to his vehicle parked next to the building. A 1066. Similar to Alvarez, upon approach from parole officers, defendant attempted to flee by rolling up the windows and placing his vehicle in reverse. A 258-59. After being ordered to exit the vehicle, defendant continually fumbled between the center console and Sawyer, and engaged in a standoff that lasted approximately 45 seconds, which resulted in defendant eventually exiting the vehicle through the passenger side door. A 262-68. Approximately three ounces of cocaine were found in and around the defendant's vehicle and on the person of Sawyer. A 268-69, 348, 375. Furthermore, as in Kelly, the facts established at trial make it clear that the apartment was being used to package and distribute narcotics. Here, a little over 3 additional ounces of cocaine (well above that of personal use) was discovered in plain view on the kitchen counter during a protective sweep of defendant's apartment, and over 6 ounces was found stashed in the kitchen cupboards. A 405, 761. It was further surrounded by numerous items associated with drug packaging and distribution including several scales, pots and pans covered in a white residue, a blender containing white powder residue, glassine envelopes, and a common cutting agent. A 405, 761. There was a white powder residue covering the kitchen and 23 everything in it. A 405. There was also testimony from Robert Sawyer detailing the moments prior to the arrest, stating that defendant was in the kitchen area where the drugs were found in plain view. A 638. Lastly, as in Daniels and Kelly, there was substantial evidence ofKims' proprietary interests in the apartment where the subject cocaine was found in plain view. Not only had Kims leased the apartment, he had engaged in discussions with the owner of the building to buy it. A 214. He also was observed regularly coming and going by the occupant of the apartment above. A 544. Several personal items belonging to defendant were recovered in the apartment including a National Grid bill, a jewelry certificate, and defendant's pay stub. A 211. In light of all the foregoing evidence demonstrating defendant's close proximity to narcotics in open view - and under circumstances evincing an intent to sell, the trial court properly agreed to give the permissive instruction authorized by PL§220.25(2). 24 POINT II. Even If The Trial Court Erred In Charging The "Drug Factory Presumption", The Error Should Be Deemed Harmless In Light Of The Overwhelming Evidence Of Defendant's Guilt Of Criminal Possession Of The Cocaine Charged By The Top Two Counts Of The Indictment. In reviewing defendant's Molineux complaints, the Fourth Department found that the trial court properly exercised its discretion, and [i]n any event, any error with respect to the Molineux ruling is harmless (see People v Baker, 21AD3d1435, 1436 [2005], Iv denied 6 NY3d 773[2006]; see generally People v Crimmins, 36 NY2d 230, 241-242[1975]). -People v. Kims, 96 A.D.3d 1595, 1598 (4th Dept. 2012). But after finding that the trial court erred in giving the drug factory presumption charge, the Fourth Department refused to engage in harmless error analysis, believing it was bound by this Court's decision in People v. Martinez, 83 N.Y.2d 26 (1993), cert. denied, 511U.S.1137 (1994). Kims, 96 A.D.3d at 1597. Martinez, however, should not preclude harmful analysis here, for the trial court instruction given the Kims jury does not suffer from the grievous flaws presented by Martinez. In Martinez, the police seized (pursuant to a warrant) a tinfoil packet containing cocaine, stashed between a couch and a wall, and a $1 bill and a $5 dollar bill bearing cocaine residue. The trial court in Martinez expanded the "drug factory presumption" instruction and did not charge the jury as to the permissive nature of the presumption. It gave the following instruction: 25 When narcotics are found in open view in a private room other than a public place under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare such controlled substances for sale, each and every person in close proximity to such controlled substances at the time the drug was found is presumed to know of such possession. The term close proximity does not necessarily mean the drugs themselves were in plain view or displayed. It is sufficient for the presumption to apply that the drugs were found in a container or package and there was other evidence of preparation of drugs for sales. - 83 N.Y.2d at 31. This Court found it would be improper to engage in harmful analysis because it could not be determined ifthe jury's guilty verdict "was predicated on the illegally charged presumption or on a finding of constructive possession irrespective of the presumption." 83 N.Y.2d at 35. But it was the wholly improper, expanded and mandatory nature of the jury charge that prompted this Court to deem it "illegal" [83 N.Y.2d at 27] - not the fact that a presumptive charge was given at all. The trial court's charge here stands in stark contrast to the one given in Martinez, for it squarely accorded with PL §220.25(2). With respect to the "drug factory presumption", the jury was instructed: Under our law, the presence of a narcotic drug or preparation in open view in a room under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare that substance for sale is presumptive evidence of knowing possession of that substance found by each and every person in close proximity to it at the time the substance was found. What that means is if the people have proven beyond a reasonable doubt that the cocaine was in open view in a room 26 and that the circumstances were such as to evince an intent, that is a conscious objective or purpose to unlawfully mix, compound, package or otherwise prepare the cocaine for sale, then you may, but are not required to, infer from that fact that each and every person in close proximity to the cocaine at the time it was found was in knowing possession of it. Whether or not to draw that inference is for you to decide entirely on your evaluation of the evidence. -A 1010, 1017. Consequently, it was not an "illegal" charge, and harmful analysis is not foreclosed. Rather, the Court should be guided by its longstanding jurisprudence in this area as in, e.g., People v. Giordano, 87 N.Y.2d 441 (1995). In Giordano, the jury was given the instruction that they could either find that the People established the element of jurisdiction under the theory of conspiracy to commit gambling or that the defendant actually promoted gambling in the jurisdiction. This Court rebuffed defendant's claim that he was entitled to reversal "based upon the speculation that the jury found jurisdiction based on a conspiracy not established by the evidence." 87 N.Y.2d at 452. Where, as here, a general verdict has been rendered and there are two lawful grounds upon which the jury could have reached that verdict but one of those grounds lacks support in the evidence, we may presume that the jury reached its determination upon the factually sufficient grounds (see, Griffin v United States, 502 U.S. 46, 116 L. Ed. 2d 371, 112 S. Ct. 466). Even if the court erred in its charge, and we conclude it did not, the fact that neither theory of geographical jurisdiction was illegal permits harmless error review (see, People v Martinez, 83 N.Y.2d 26, 35, cert denied 511 U.S. 1137; and compare, People v Ribowsky, 77 N.Y.2d 284, 292, supra). - 87 N.Y.2d. at 451 [emphasis added]. 27 See also, People v. Becoats, 17 N.Y.3d 643, 654 (2011), cert. denied, 132 S. Ct. 1970 (2012) (holding that Becoats was not entitled to a new trial on the ground that he might have been convicted based upon an "illegal" theory: "where jurors are given a choice between a factually supported and factually unsupported theory, it is assumed that they have chosen the one with factual support, since jurors are well equipped to analyze the evidence" [internal citation omitted, emphasis in original]). In the instant case, the jury was instructed on the "drug factory presumption" with respect to the two counts of Criminal Possession of a Controlled Substance and constructive possession as to all counts. A 1011, 1012, 1015, 1016, 1019, 1023. The jury's guilty verdict on the lesser charges bespeaks of their conclusion that defendant constructively possessed all drugs found in the residence. On his appeal to the Fourth Department, defendant did not challenge his convictions of the lesser, marihuana and drug paraphernalia possession counts on legal insufficiency grounds, and the People's proof of his constructive possession of the cocaine is also so overwhelming that it cannot be fairly said that there is a significant probability the jury would have acquitted defendant had the PL §220.25(2) instruction not been given. See generally, People v. Crimmins, 36 N.Y.2d 230 (1975). The testimony of Ms. Kelly, who rented the LeRay Street premises to defendant, as well as the lease and National Grid Bill, clearly established 28 defendant's dominion and control of the apartment. A 197-1006, 1044. The National Grid bill itself was entered into evidence. A 1044. There was also photographic evidence of a text message that defendant had entered into discussions regarding the potential sale of the building as well as his ability to make a $20,000 cash down payment. A 1115. Kelly's testimony is buttressed by the testimony of Tillman, who testified that he regularly saw defendant coming and going from the apartment. A 544. Several parole officers testified that after observing defendant exit the residence, they stopped and searched him and located just over 3 ounces of cocaine on his confederate Robert Sawyer and in-around his vehicle. A 7 51-61. People's Exhibit 15 was entered into evidence depicting the short distance between the exit of the residence and defendant's car. A 1066. Pictures demonstrating the substantial amount recovered were entered also into evidence. A 1046, 1048, 1050. Robert Sawyer testified that with the exception of the gram bag that he had just purchased from the defendant, all other drugs found belonged to the defendant who had given him the drugs to hide to avoid a parole violation. A 641. The sheer amount of narcotics as well as packaging materials located in plain view coupled with Sawyer's testimony that the defendant had just left that area certainly evinces defendant's knowledge of the narcotics as well as his ability to 29 exercise dominion and control over them. A 639. Furthermore, testimony of both Saywer and Mallette of defendant's involvement in the drug trade adds to the establishment of defendant's constructive possession of the drugs. A 578-608, 726-31. A substantial amount of cash, approximately $24,000, was stashed in the same bedroom safe that contained defendant's signed rental agreement and the National Grid bill in his name. 411, 1104, 1044, 1062. Furthermore, law enforcement who executed the search warrant testified that there was over nine ounces of narcotic found in the apartment, including three ounces of cocaine which were found in a large clear bowl in plain view on the counter. A 405. As well as testimonial evidence, pictures of the residence and narcotics found in plain view were admitted. A 1058, 1074, 1076. There were several items associated with the packaging of cocaine in plain view on the counter, the safe containing twenty four thousand dollars, as well as one thousand three hundred and nine grams of marijuana found in a closet within the residence. A 410. All of this evidence clearly established defendant's possession of the narcotics found in this apartment. In sum, the PL §220.25(2) charge here was, unlike Martinez, properly worded and a permissive one. Consequently, there is no danger that the jury's verdict rested on an "illegal" jury instruction, and harmless error analysis should apply, 30 even ifthe Court were to find that a §220.25(2) instruction was erroneously given. Because there was overwhelming evidence of defendant's constructive possession of the cocaine that was the subject of the indictment's top two counts, the Appellate Division's order should be reversed and the convictions of Criminal Possession of a Controlled Substance in the First and Third Degrees should be reinstated. 31 CONCLUSION For the foregoing reasons, the trial court did not err in instructing the jury as per Penal Law §220.25(2). In the event the Court finds the instruction should not have been given, it nonetheless should conclude that the error was harmless and reinstate the convictions of Criminal Possession of a Controlled Substance in the First and Third Degrees. Dated: Watertown, New York August 9, 2013 32 Respectfully submitted, CINDYF. INTSCHERT DISTRICT ATTORNEY, JEFFERSON COUNTY Attorney for Appellant 175 Arsenal Street Watertown, NY (315) 785-3053 Harmony A(-r ealy Assistant District Attome Of Counsel