The People, Appellant-Respondent,v.Stanley R. Kims, II, Respondent-Appellant.BriefN.Y.September 11, 2014To be argued by: Harmony A. Healy (15 minutes) APL 2013‐00095 Jefferson County Indictment No. 255‐10 Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant‐ Respondent, ‐ against ‐ STANLEY R. KIMS, II, Respondent‐Appellant. PEOPLE’S BRIEF AS RESPONDENT & IN REPLY CINDY F. INTSCHERT DISTRICT ATTORNEY, JEFFERSON COUNTY Attorney for Appellant 175 Arsenal Street Watertown, NY 13601 Telephone: (315) 785‐3053 Fax: (315) 785‐3371 KAREN F. McGEE HANNAH E.C. MOORE New York Prosecutors Training Institute 107 Columbia Street, Albany, NY 12207 (518) 432‐1100 On the Brief Date of Completion: January 10, 2014 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1 POINT I. Whether The Contraband Seen In Plain View During The Cursory Examination Of The “Stash House,” Which Defendant Had Just Exited – But Which Was Seized Pursuant To A Warrant – Should Be Suppressed Presents A Mixed Question Of Law And Fact Beyond This Court’s Review ................................................................ 2 POINT II. The Trial Court Properly Admitted First-Hand Evidence Of Defendant’s Prior Drug Dealings And Witness Tampering. Any Error In The Remainder Of Its Molineux-Ventimiglia Rulings Should Be Deemed Harmless In Light Of The Overwhelming Evidence Of Defendant’s Guilt ................................................. 19 POINT III. The Challenges To Certain Remarks Made By The Prosecutor In Summation Have Not Been Preserved As A Question Of Law Reviewable By This Court, Which Should Not Reverse On The Ground That The Absence Of Objection Establishes That Defendant Was Denied Meaningful Representation At Trial .............................................. 24 i POINT IV. Defendant’s Argument That The Trial Court Erred In Instructing The Jury As To Penal Law §220.25(2)’s Permissive Presumption Is Unavailing Because The Trial Evidence Supported That Charge .......................................... 28 CONCLUSION ........................................................................................................ 34 ADDENDUM People’s Memorandum of Law, dated December 5, 2010, following the suppression hearing held on November 29, 2010 ............................... 1 December 1, 1971 letter from Paul J. Curran, Chair of the New York State Commission of Investigation (from legislative bill jacket for L. 1972, ch. 1044) ………… …………………….8 ii TABLE OF AUTHORITIES CASES Griffin v United States, 502 US 46 (1991) ............................................................... 33 People v Aguirre, 220 AD2d 438 (2001) ................................................................. 24 People v Alfaro, 19 NY3d 1075 (2012) .................................................................. 23 People v Alvino, 71 NY2d 233 (1987) .................................................................... 20 People v Anderson, 76 AD3d 980 (2d Dept 2010) ................................................. 22 People v Anonymous, 96 NY2d 839 (2d Dept 1995) ............................................... 27 People v Arnau, 58 NY2d 127 (1982)) .................................................................... 17 People v Benevento, 91 NY2d 708 (1998) .............................................................. 25 People v Bennett, 79 NY2d 464 (1992) ............................................................ 21, 22 People v Bost, 264 AD2d 425 (2d Dept 1999) .................................................. 13, 14 People v Brown, 95 NY2d 942 (2000), affirming 274 AD2d 941(4th Dept 2000) ........................................................ 4, 12 People v Bryant, 91 AD3d 558 (1st Dept 2012), lv denied, 20 NY3d 1009 (2013 ) ........................................................................ 14 People v Burr, 70 NY2d 354 (1987) ....................................................................... 27 People v Cass, 18 NY3d 553 (2012) ....................................................................... 11 People v Clanton, 204 AD2d 180 (3d Dept 1994) ................................................. 25 People v Clements, 37 NY2d 675 (1975)), cert denied sub nom, Metzger v New York, 429 US 11 (1976) ............................................................. 14 People v Coles, 105 AD3d 1360 (4th Dept 2013) .................................................. 18 People v Concepcion, 17 NY3d 192 (2011) ........................................................... 18 People v Conklin, 139 AD2d 156 (3d Dept 1988) .................................................. 20 iii People v Crimmins, 36 NY2d 230 (1975) .............................................................. 23 People v Diaz, 108 Misc 2d 213 (Sup Ct, NY County 1981) ........................... 29, 30 People v Dodt, 61 NY2d 408 (1984) ......................................................................... 3 People v Dorm, 12 NY3d 16 (2009) ....................................................................... 19 People v Fields, 45 NY2d 986 (1978) ..................................................................... 15 People v Fisher, 18 NY3d 964 (2012) ..................................................................... 24 People v Gamble, 18 NY3d 386 (2012) ................................................................. 21 People v Gonzalez, 55 NY2d 720 (1981), cert denied, 456 US 1010 (1982) .......................................................................... 3 People v Green, 103 AD2d 362 (2d Dept), lv denied, 64 NY2d 760 (1984 ) .......................................................................... 15 People v Halm, 81 NY2d 819 (1993) ...................................................................... 27 People v Hallman, 92 NY2d 840 (1998) ................................................................... 4 People v Harrison, 57 NY2d 470 (1982) ................................................................ 17 People v Hobot, 84 NY2d 1021 (1995) ................................................................... 25 People v Howard, 2013 NY Slip Op 7824 (11/21/2013) ........................................ 17 People v Ingram, 71 NY2d 474 (1988) .................................................................. 21 People v Lasso-Reido, 305 AD2d 121 (1st Dept) lv denied, 100 NY2d 595 (2003) ......................................................................... 15 People v Lynch, 63 AD3d 959 (2d Dept 2007) ....................................................... 20 People v Marks, 6 NY2d 67(1959), cert denied, 362 US 912 (1960) .......................................................................... 26 People v Martinez, 83 NY2d 26 (1993), cert denied, 511 US 1137 (1994) ................................................................. 32, 33 People v Melendez, 16 NY3d 869 (2011) ............................................................... 24 People v Miranda, 220 AD2d 218 (1st Dept 1995) lv denied, 87 NY2d 849 (1996) ........................................................................... 28 People v Morris, 21 NY3d 588 (2013) ............................................................. 19, 20 People v Negron, 91 NY2d 788 (1998) .................................................................. 29 iv v People v Pearson, 75 NY2d 1001 (1990) ................................................................ 29 People v Pugh, 236 AD2d 810 (4th Dept 1997), lv denied, 89 NY2d 1099 (1997) ......................................................................... 22 People v Riddick, 159 AD2d 596 (2d Dept 1990) lv denied, 76 NY2d 741 (1990) ........................................................................... 28 People v Satiro, 72 NY2d 821 (1988) .................................................................... 20 People v Tonge, 93 NY2d 838 (1999) .................................................................... 27 People v Utley, 45 NY2d 908 (1978) ..................................................................... 24 People v Weathers, 100 AD3d 1521 (4th Dept 2012) ............................................ 15 People v Wheeler, 2 NY3d 370 (2004) ........................................................ 15, 16, 17 People v Yazum, 13 NY2d 302 (1963) .................................................................. 22 STATUTORY PROVISIONS NY Criminal Procedure Law §470.05(2) ............................................................... 24 NY Criminal Procedure Law §470.35(1) ............................................................... 32 NY Penal Law §220.25(2) ...................................................................................... 28 OTHER NY State Constitution, Art. VI, §3(a) ....................................................................... 4 Letter from Paul J. Curran, Chair of the NYS Commission of Investigation, dated December 1, 1971 (from legislative bill jacket for L. 1972, ch. 1044) ............................................... 31 STATE OF NEW YORK COURT OF APPEALS ---------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Docket No. APL 2013- Appellant-Respondent, 0095 --vs-- STANLEY R. KIMS, II, Respondent-Appellant. -----------------------------------------------------------------------------X PRELIMINARY STATEMENT This matter involves cross-appeals from the Appellate Division, Fourth Department’s Memorandum and Order of June 15, 2012. People v. Kims, 96 AD3d 1595(4th Dept. 2012), lv granted, 21 NY3d 913 (2013) (Smith, J.) Both parties have served and filed their initial briefs. Because the People do not wish to burden this Court with a third Statement of Facts, only those facts most pertinent to the issues addressed herein are presented, in the Points themselves. 1 1 The first three Points below address the claims raised by defendant in his role as appellant; the final Point replies to his argument that the Court should affirm that prong of the Fourth Department order which directed a new trial of the top counts of the indictment. 1 POINT I. Whether The Contraband Seen In Plain View During The Cursory Examination Of The “Stash House,” Which Defendant Had Just Exited – But Which Were Seized Pursuant To Warrant – Should Be Suppressed Presents Mixed Questions Of Law And Fact Beyond This Court’s Review. (Answering Respondent-Appellant’s Point Three) Introduction Defendant would have this Court reverse that prong of the Fourth Department order which upheld the trial court’s declination to suppress the cocaine, marihuana, scales, etc. taken from the 1-bedroom apartment he had rented unbeknownst to his parole officer. At the outset, the People point out that – contrary to the impression conveyed by defendant’s Brief2 – all of this physical evidence was seized pursuant to a warrant issued later in the afternoon of April 12, 2010. SA 59 (warrant), SA 65 (return on the warrant).3 The officers observed what appeared to be cocaine and drug packaging/sales paraphernalia in plain view as they made a quick reconnoiter through the apartment minutes after defendant had exited it. But they examined none of it, did not conduct any field tests on the spot, and did not take any of the suspect items in plain view with them when they 2 E.g., “Evidence found inside the residence on LeRay Street should have been suppressed because it was seized during a warrantless ‘protective sweep’ by the police” (Defendant’s Brief, p. 49, heading of Point Three); “the Fourth Department should have [suppressed] the drugs that were seized during the warrantless sweep” (id. at p. 54). 3 Numbers preceded by SA refer to pages of defendant’s Supplemental Appendix; those preceded by A refer to pages of the Appendix filed with the People’s initial brief. 2 left defendant’s “stash house.” Nor did they refer to their observations in the sworn depositions filed in application for the subsequent warrant authorizing the search of the LeRay Street apartment (SA 63, 64). This fact was the basis for the People’s argument, in the alternative, to the County Court that the evidence should not be suppressed because the warrant rested on probable cause furnished by information “independent of the drugs found during the protective sweep of the residence [citing to People v Aguirre, 220 AD2d 438 (2d Dept 1995].” Addendum to this Brief, p. 6 (People’s Memorandum of Law dated December 5, 2010).4 Additionally, in both his Statement of Facts and his legal argument pertaining to this issue, defendant primarily relies on the testimony adduced at trial. However, “the denial of a suppression motion must be judged on the evidence before the suppression court.” People v Gonzalez, 55 NY2d 720, 721 (1981), cert denied, 458 US 1010 (1982); see also, People v Dodt, 61 NY2d 408,417 (1984) (holding Appellate Division’s finding of independent sources was “improperly based on evidence adduced at trial”). Accordingly, the page citations in this Point are limited to the November 29, 2010 transcript (reproduced in its entirety in volume I of the People’s initial Appendix) and do not mirror the Appendix citations employed by defendant in, e.g., pages 8-10 of his brief. 4 The County Court did not reach that question in its Decision-Order denying suppression (SA 143-161). 3 More importantly, the Court should conclude that the County Court’s finding of exigent circumstances sufficient to warrant a cursory “sweep,” is a mixed question of law and fact beyond its scope of review. New York State Constitution, Article VI, §3(a); see, e.g., People v Hallman, 92 NY2d 840 (1998); People v Brown, 95 NY2d 942 (2000). And should the Court reverse the Appellate Division on this ground, it should return the matter to the County Court for further proceedings. The pertinent evidence and findings below The People called Parole Officers PATRICK GLENNON, CHRISTOPHER LAWRENCE, and Watertown Police Detective JAMES McNITT to testify at the November 29, 2010, pretrial hearing conducted on defendant’s challenges to the search warrant and the warrantless search of his Chevy Suburban. In addition to their testimony, the Conditions of Parole Release that defendant had previously acknowledged, in writing, was received into evidence as Exhibit 1(A 20).5 5 This same Conditions of Parole Release document was admitted at trial as People’s Exhibit 1 and may be found at pp. 1041-1044 of the Appendix previously filed with the Court. Exhibit 1 was introduced to demonstrate defendant’s awareness of his obligations as a parolee. The People did not attempt to convince the hearing court (or later, the Fourth Department) that the entry of police and parole officers into the LeRay Street apartment was a permissible search of a parolee’s residence under, e.g., People v Huntley, 43 NY2d 175 (1977). 4 Defendant himself did not take the stand or adduce any other evidence at the hearing. Parole Officer Glennon, who had supervised defendant in the past, was again assigned to supervise defendant following his most recent release from prison. On a number of occasions, defendant was not at his mother’s home (his approved residence) when P.O. Glennon paid periodic visits. A 12, 27. Prior to the events of April 12, 2010, Glennon had observed defendant with gang members (the word on the street was that defendant was a Crip); other parolees had told Glennon recently that defendant had a “safe place” a/k/a “stash house” somewhere in town. A 28, 31-33. Watertown Police Detective James McNitt, a member of the Metro Jefferson Drug Task Force, also informed the parole officer that he had heard defendant “was back in the game” of selling drugs. A confidential informant reported to the detective on April 7, 2010, that defendant was staying over at – and selling drugs out of – a LeRay St. location. Two days later, McNitt himself observed Stanley Kims leaving the premises at [number redacted] LeRay Street in the company of two, known drug dealers, Quinton Roach and “Africa”, whose true name McNitt could not immediately recall on the stand. A 32, 84-85, 93-94, 99- 100. The detective subsequently met with the landlords of the premises, who confirmed that defendant had rented the LeRay Street apartment and gave him a 5 copy of the lease agreement defendant had signed. Because Parole Officer Glennon was not expected to be working on weekends, Detective McNitt did not immediately relay this information to him. A 85, 96. He did call Glennon Monday morning (April 12) and further advised the parole officer that he had just seen defendant’s 2002 Chevy Suburban on LeRay Street. A 16, 86, 93, 96. As a result of this phone call, Glennon asked two other parole officers, who happened to be in the Watertown office that day, if they were available to join him and his partner, Christopher Lawrence, in a stake-out of the LeRay Street address. Glennon wanted to see who might be coming and going from the house; if defendant himself made an appearance; and if so, his parole officer would seek clarification from defendant as to “what was really going on.”6 A 16-17, 36-37. The four officers set off in two vehicles, arriving in the vicinity at about 11 AM; defendant’s Suburban was in front of the premises, “parked up against the side of the house.” Officers Glennon and Lawrence remained on LeRay Street with a view of the front door entrance; Officers Valentine and Huber positioned their car so as to observe another side of the premises. A 16-17, 37, 41, 57, 67. An hour or so later, defendant and another man (whom Glennon did not recognize, but was later identified as Robert Sawyer) emerged from the front door 6 Parole Officer Glennon did not enlist the local police in this endeavor, but asked Det.McNitt if members of the police department/Drug Task Force would be in the area, if their assistance were needed. A 24-25 6 of the house. They climbed into the Suburban as Glennon hailed defendant with “Hey, Stanley, hold on a minute, stop!” Defendant pointedly ignored his parole officer. Indeed, the Suburban windows rolled up; the door locks clicked shut; and defendant shifted the car into reverse. The duo was unable to escape, however, because Kims’ Suburban was blocked in by the parole officers’ vehicle. A 17-18, 69. Lawrence stationed himself alongside the driver’s door; Glennon was at the right, front door. Both men inside the Suburban failed to comply with the parole officers’ repeated directives to show their hands. Seeing defendant reach for the center console between the front seats and concerned he was reaching for a weapon, the parole officers drew their own guns and ordered the men to show their hands and open the door. These commands too met with no immediate compliance; defendant was still groping around the console. But then, the passenger door-lock button clicked up, enabling Glennon to swing the door open and grab the passenger by the arm. A 18-19, 43. Seeing that Glennon was now engaged with Sawyer, defendant immediately clambered over the console and made his exit from the passenger door, not his own driver’s door where Parole Officer Lawrence was poised. In his hasty scramble, defendant fell outside the car (probably tripping over Glennon, whose attention 7 was fixed on Sawyer) and landed on the pavement by the back passenger door. A 20, 44. A rock of crack cocaine, packaged in plastic, was now on the ground outside the Suburban’s passenger door. Sawyer had secreted a similar package in his sock/shoe; a third package was recovered from the console between the Suburban’s front seats when the parole officers did a quick check of the vehicle for weapons. Now faced with a scenario implicating more than a mere parole violation, P.O. Glennon contacted the Drug Task Force. A 20-21, 25, 36, 45, 47, 74. Unbeknownst to the parole officers, Detective McNitt and several other Drug Task Force members were quite close by. Consequently, they arrived almost immediately on the scene, where P.O. Glennon quickly filled them in: defendant had refused to comply with the parole officers’ directives,7 and cocaine had just been found on the ground, on the passenger’s person, and in the Suburban itself. A 47-48, 88-89. Even after being handcuffed and with the additional authorities on the scene, defendant was not placid; he was “yelling in general” and shouting out, “Call Chino, call Chino!” to either the bystanders who were gathering or possibly someone inside the LeRay Street residence. Det. McNitt recognized Chino as the “street name” of Jeffrey Fineout, a longtime local criminal and, more recently, a drug-dealing confederate of defendant. Hearing these exhortations, McNitt asked 7 Det. McNitt himself, in a car 100-150 yards away, had witnessed defendant’s entry into the Suburban and the attendant stand-off with the parole officers (A 88, 101). 8 defendant if anyone was inside the house, but defendant fell silent, turned away and did not respond with either a Yes or a No. A 89-90, 100. As the police told the parole officers, a search warrant would be obtained before the police subjected the Suburban and/or the residence to a search. A 47, 77. But especially in light of defendant’s attempts to alert Chino, Det. McNitt concluded it would be prudent to conduct a cursory “sweep” of the residence for safety reasons (and to preserve evidence), a measure welcomed by Parole Officers Glennon and Lawrence, who were concerned about danger lurking from within the premises. A 90, 48, 50-51, 77, 80, 103-04. Using the house key from defendant’s key ring that P.O. Glennon had in hand, Det. McNitt, a fellow Watertown Police officer, and Parole Officers Glennon and Lawrence entered the first floor apartment through the same front door from which defendant and Sawyer had exited minutes earlier. After rousting Jeffrey Fineout (a/k/a Chino), who was asleep on the living room couch just beyond the front door, the officers made a quick foray through the small apartment and satisfied themselves that there were no other occupants. A 50, 53, 59, 90-91. A quantity of what appeared to be cocaine was on the kitchen counter, along with drug paraphernalia. But none of the officers – police or parole – touched those items or anything else before immediately heading out to prepare an application for a search warrant. A 82, 91. Although one of the reasons for 9 granting the hearing was to ascertain whether the subsequent search exceeded the scope/authority of the warrant (SA 134-35), defense counsel did not seek to explore this issue at the hearing. At the hearing’s conclusion, the County Court reserved decision in order to afford the parties time to review the to-be-prepared transcript of the proceeding and submit memoranda of law (A 108). By Decision-Order dated December 20, 2010, the court denied defendant’s suppression motion, finding no merit in his challenges to the April 12, 2010 warrant, the search authorized thereby, or the conduct of either the parole officers or the police officers earlier that day (SA 143- 61). The decision is a lengthy review of the evidence adduced at the suppression hearing and relevant case law from federal and New York state courts. The County Court noted that there appeared to be no case squarely on all fours with the matter before it, but found cases such as Buie v Maryland, 494 US 325 (1990), were sufficiently analogous to provide useful guidance. Its conclusion that the sweep (a) was warranted by a totality of the circumstances, and (b) was conducted “in a constitutionally permissible manner” (SA 160), rests on its findings of fact, and the inferences it drew therefrom, sythnesized as follows: • Detective McNitt had a rational basis for concluding that there was a nexis between defendant and the LeRay Street apartment. An informant had alerted McNitt to the facts defendant had gone back 10 in the game and had established a “safe house” or “stash house” on LeRay Street. Following up on this tip, the detective had observed, two days earlier, defendant exit the premises in the company of two other, known drug dealers. On the morning of April 12, 2012, he had seen defendant’s Suburban parked outside just a few hours earlier and advised Parole Officer Glennnon of that fact; he himself saw defendant and Sawyer proceeding to the Suburban, and the two parole officers “confirmed that they had seen the door from which the two men emerged” (SA 156). • McNitt reasonably believed there was evidence inside the premises “of such a nature (specifically cocaine) that it could be destroyed very quickly (such as by flushing it down a toilet or washing it down a sink) if the police did not act swiftly” (SA 156). The parole officers had advised him that crack cocaine had just been found on Sawyer’s person and in/around defendant’s vehicle, and “McNitt had actually seen some of the cocaine” (SA 156). • McNitt’s concern for officer safety was also warranted. • He had good reason to suspect that “at least one other associate of Kims was still inside.” Defendant was urgently telling whatever allies might be within earshot to alert Chino, known by McNitt to be Jeffrey Fineout’s street name, and when McNitt asked if anyone was inside the premises, defendant turned his head away from the detective’s gaze and did not answer (SA 157) • Fineout and defendant had been identified as confederates in the local, illicit drug trade. Appellate courts, in upholding comparable cursory sweeps, have repeatedly recognized that narcotics traffickers are often armed and violent (SA 158-59 and fn. 3) • As for the manner in which the “short cursory search of the premises” was conducted, “the testimony demonstrates that…the icers exercised appropriate restraint…, even after the suspected aine was observed on the kitchen counter” (SA 160) off coc In sum, the County Court concluded that the cursory sweep, prompted by a hybrid concern for officer safety and the destruction of fungible evidence, “did not violate 11 the defendant’s state and federal rights to be free of unreasonable searches and seizures” (SA 160). Defendant’s efforts to persuade this Court to reverse the Appellate Division’s affirmed denial of suppression should fail. For example, the Court affirmed the denial of suppression in People Brown, supra, on the ground that a determination of whether exigent circumstances existed is a mixed question of fact and law beyond its review. A conclusion reached despite the fact that the People had not “explicitly elicit[ed] testimony on the issue of exigency and the suppression court made no findings on that issue”; the Fourth Department had found that exigent circumstances justified the warrantless entry into Brown’s apartment and the seizure of “baggies” of cocaine in plain view on the kitchen counter, in large part because “it is well known that persons who engage in drug trafficking will often attempt to dispose of the narcotics or to escape.” 274 AD2d 941 (4th Dept 2000). Here, the County Court’s conclusion was indeed supported by record facts and reasonable inferences. Defendant’s arguments to the contrary are not persuasive. His assertion that the County Court erred in finding that the police had sufficient reason to believe that narcotics might be inside the apartment is grounded on the contention that the record demonstrates only that drug transactions 12 had taken place there two weeks before (Defendant’s Brief, p. 52). This contention, however, is not supported by a citation to the hearing transcript, and in the County Court pointed to the on-the-scene presence of rocks of cocaine (SA 156). Defendant also argues that it was improper to infer that anyone else was still inside the apartment – a key fact found below – since he was not “looking directly at the premises and calling out to Chino directly.” In his view, urgently yelling to bystanders to “Call Chino, Call Chino” should give rise to an inference “that Chino was somewhere else rather than inside the premises.” Defendant’s Brief, pp. 51- 52. This proposed, alternate inference is itself unreasonable. It ignores the fact that “call” is common shorthand for “make a telephone call.” Defendant’s effort to incite an alert of Chino does not compel the conclusion that Chino was not inside the premises. Additionally, defendant has conveniently overlooked Detective McNitt’s unimpeached testimony that defendant refused to tell him whether or not anyone else was inside (A 100). For this reason alone, this case is not on all fours with People v Bost, 264 AD2d 425 (2d Dept 1999), the case on which defendant places such reliance. The police witness had been informed that Bost (sought in connection with a drive-by shooting) had a roommate, but testified at the suppression hearing to no facts that would support an inference that the roommate was inside the shared apartment 13 when the police entered it shortly after 5 PM following their backyard arrest of Bost. 264 AD2d at 425. But there is more. The police had received information implicating Bost in the shooting hours before they went to his residence – without first seeking an arrest and/or search warrant – and invited him to step outside, so that they could make a warrantless arrest. Additionally, there was no testimony at the suppression hearing that the roommate was believed to be involved with the drive-by shooting or any other crime. 264 AD2d at 425. Given the nature of the testimony at the hearing on Bost’s motion to suppress, it is scarcely surprising that the Second Department suppressed the cocaine seized from the kitchen table. Lastly, had there been sufficient factual predicate, the Bost court would have affirmed the sweep as justifiable in order to ascertain whether there persons inside the apartment “who might destroy evidence or pose a threat to the officers or the public.” 264 AD2d at 426. Here, as in People v Clements, 37 NY2d 675 (1975), cert denied sub nom, Metzger v New York, 429 US 11 (1976), “the officers were obviously dealing with potentially readily disposable evidence”, and “[s]ignificantly,” this “was not a wide-ranging…rummaging search.” 37 NY2d at 679-80. See also, People v Bryant, 91 AD3d 558 (1st Dept 2012), lv denied, 20 NY3d 1009 (2013) (“a limited protective sweep” may be conducted “to determine whether there [is] anyone 14 present who might destroy evidence or pose a threat to the officers”); People v Lasso-Reido, 305 AD2d 121 (1st Dept 2003), lv denied, 100 NY2d 595 (2003) (same); People v Green, 103 AD2d 362 (2nd Dept 1984), lv denied, 64 NY2d 760 (1984) (same). Compare, People v Fields, 45 NY2d 986 (1978) (no evidence to suggest that any contraband was left to be protected, given the sounds of toilet flushing prior to the police entry); People v Weathers, 100 AD3d 1521 (4th Dept 2012) (police did not keep apartment under surveillance in the nearly half-hour before they entered it; that fact demonstrated they were not concerned that evidence was about to be removed or destroyed by anyone inside). Defendant’s assertion that People v Wheeler, 2 NY3d 370 (2004), mandates reversal is belied by Wheeler itself. The suppression court there “denied defendant's motion to suppress the handgun in a broad holding encompassing two legal standards: the protective sweep doctrine [permitted by Maryland v Buie, 494 US 325 (1990)] and the reasonableness analysis under the Fourth Amendment [citation omitted]”; the Second Department “affirmed defendant's conviction and upheld the denial of his motion to suppress, holding that the ‘limited security sweep conducted by the police’ was reasonable and lawful” [citation omitted]. 2 NY3d at 373. In affirming the denial of suppression, this Court first noted that Since defendant's challenge to the hearing court's determination involves a mixed question of law and fact, our review is limited to 15 whether there is record support for the determinations of the courts below. The Appellate Division affirmed the denial of the motion to suppress without disturbing the court's finding of reasonableness, and unless there is no view of the evidence that would support that determination, we are bound by the suppression court's finding [citation omitted]. – 2 NY3d at 373. Although the Court concluded that “the circumstances presented here did not arise during the course of a protective sweep for persons who, in hiding, posed a danger to the officers at the scene of the arrest, 8 Buie and its progeny do not apply” (ibid), it nevertheless upheld the denial of suppression. We have previously noted that the facts in suppression cases are not always neatly categorized and therefore have favored general guidelines for the resolution of individual cases (see People v Prochilo, 41 N.Y.2d 759, 363 N.E.2d 1380, 395 N.Y.S.2d 635 [1977])… The proper test to be employed is the reasonableness of the governmental invasion of defendant's privacy under the Fourth Amendment. Moreover, "the determination of the suppression court with its peculiar advantages of having seen and heard" the testimony is entitled to great deference (Prochilo, 41 N.Y.2d at 761). In other contexts, we have held that whether police interference is reasonable requires a weighing of the government's interest against an individual's right to privacy and personal security (see generally People v De Bour, 40 N.Y.2d 210, 215, 352 N.E.2d 562, 386 N.Y.S.2d 375 [1976], citing People v Cantor, 36 N.Y.2d 106, 111, 324 N.E.2d 872, 365 N.Y.S.2d 509 [1975]). The court "must undertake a dual inquiry: whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place'" [citations omitted]). The propriety of an officer's interference with the 8 The gun at issue was not observed in the course of a sweep through premises incident to an arrest. Bost was sitting on the gun, which came into view after he complied with the officer’s directives to shift position and show his hands. 2 NY3d at 165. 16 privacy and security of an individual must be balanced against the relevant circumstances. Applying these principles to the instant case, we conclude that…the evidence supports the undisturbed finding that the limited police action was reasonable. Thus, defendant's motion to suppress was properly denied. – 2 NY3d at 166-67. Because there is record support for the County Court’s determination here of this mixed question, the Court must affirm even though “reasonable minds may differ as to the inferences to be drawn”. People v Harrison, 57 NY2d 470,477 (1982), accord, e.g, People v Howard, 2013 NY Slip Op 7824 (November 21, 2013). Finally, even if this Court were to rule that this brief sweep denied defendant his constitutional right to be free of unreasonable searches, suppression does not automatically follow, as defendant seems to believe. “The fact that there has been a warrantless initial search does not invariably require the suppression of evidence later seized pursuant to warrant.” People v Burr, 70 NY2d 354, 362 (1987). The exclusionary rule does not apply where independent evidence proffered in support of the warrant established probable cause for its issuance. People v Arnau, 58 NY2d 27, 33 and fn 1 (1982); accord, e.g., People v Aguirre, supra. Because neither this Court nor the Appellate Division can properly consider issues not ruled upon by the trial court, this matter should be remitted to the County Court for 17 further proceedings. People v Concepcion, 17 NY3d 192 (2011); People v Coles, 105 AD3d 1360, 1363 (4th Dept 2013). 18 POINT II. The Trial Court Properly Admitted First-Hand Evidence Of Defendant’s Prior Drug Dealings And Witness Tampering. Any Error In The Remainder Of Its Molineux-Ventimgilia Ruling Should Be Deemed Harmless In Light Of The Overwhelming Evidence Of Defendant’s Guilt. (Answering Respondent-Appellant’s Point Two) As recently as three months ago, this Court reaffirmed “the familiar proposition that evidence of uncharged crimes is inadmissible where its purpose is only to show that a defendant’s bad character or propensity towards crime [citations omitted].” People v Morris, 21 NY3d 588, 594 (2013) [emphasis added]. Here, the trial court’s advance Molienux-Ventimiglia ruling, which did not grant the People’s application in toto (SA 183-192) – and its mid-trial decision permitting testimonial and video evidence of the assault Skelly Crowell perpetrated, at defendant’s goading, upon a fellow inmate whose name was among those on the People’s trial witness list – permitted the receipt of relevant evidence for recognized legitimate purposes. Where, as here, “there is a proper, non- propensity purpose, the decision whether to admit evidence of prior bad acts rests upon the trial court’s discretionary balancing of probative value and unfair prejudice.” People v Dorm, 12 NY3d 16, 19 (2009). A trial court’s decision in this regard “may not be disturbed [by this Court] simply because a contrary 19 determination could have been made or would have been reasonable.” Morris, 21 NY3d at 597. The evidence as to Stanley Kims’ prior drug transactions “was legally admissible on the People’s case” because, like Amalio Hernandez (the defendant in the case consolidated with Charles Alvino’s appeal), “defendant’s possession of the drugs, standing alone, did not provide a clear indication of whether he held the drugs for sale or for his own use.” People v Alvino, 71 NY2d 233, 245 (1987). Even though the prosecution might rest on the inference available, from defendant’s possession of such a substantial quantity of drugs, that he intended to sell them[,] [i]t is not required to do so… [E]vidence of [these] prior uncharged crimes was admissible to show the necessary mental state of the statute. Ibid. Accord, e.g., People v Conklin, 139 AD2d 156 (3d Dept 1988) (evidence of prior drug sales properly admitted on People’s direct case to counter defense claim in opening statement that Conklin knew nothing about large quantity of drugs, his cooperating cohort had stashed drugs in barn unbeknownst to defendant); People v. Lynch, 63 AD3d 959 (2d Dept 2007). See also, People v Satiro, 72 NY2d 821, 822 (1988) (upholding admission of evidence demonstrating Satiro’s involvement with drug sales because it was relevant to show, inter alia, that he “exercised dominion and control over the drugs, even though he was out of the country at the 20 time of the search and others had access to the room”); People v Ingram, 71 NY2d 474, 479 (1988) . The testimony from Kenneth Mallette, Andre Tillman, and Robert Sawyer concerning Kims’ drug dealings was based on their personal knowledge, grounded on their own observations with him and his confederates, their experiences with him, what he told them. This testimony not only served the legitimate purpose approved by Alvino, supra, it also explained to the jury the nature of the relationship each with defendant, why they knew him to the extent they did, and revealed these witnesses’ own interests that the jury should be cognizant of.9 See, People v Gamble, 18 NY3d 386, 398 (2012) (challenged testimony “provided necessary background information on the nature of relationship between defendant and witnesses”). If the People had not elicited on direct examination that, e.g., Robert Sawyer was also under indictment, defendant himself would have done so on cross-examination and thereby conveyed to the jury, misleadingly, that the People had been seeking to cover up the unsavory aspects of these witnesses. That defendant, his mother, and his girlfriend sought to influence/harass witnesses, and that the assault of a prospective People’s witness was done at defendant’s behest, was properly admitted for that is conduct “that has been recognized as revealing a guilty mind.” People v Bennett, 79 NY2d 464, 469 9 The jury was charged that it must determine whether Sawyer was an accomplice and that both Mallette and Andre Tillman “should be considered police informers”, with their testimony assessed in light of that (A 10001-002). 21 (1992). See also, People v Anderson, 76 AD3d 980, 981 (2d Dept 2010) (trial court did not abuse its discretion when it permitted a witness to testify that he had been threatened before trial by individuals linked to defendant); People v Pugh, 236 AD2d 810, 812 (4th Dept 1997), lv denied, 89 NY2d 1099 (1997). Flight, too, is “indicative of guilt and hence of guilt itself.” Bennett, 79 NY2d at 469. The fact that defendant was seeking to escape from being taken into custody on a parole violation does not render the evidence of flight inadmissible. People v Yazum, 13 NY2d 302, 304 (1963) (“that the attempted escape might have been motivated by a consciousness of guilt of the Ohio parole violation as well as by guilt feelings over the crime involved here” does not preclude admissibility). But even if the Court should conclude that the County Court erred in admitting the evidence concerning defendant’s attempted escape or the testimony from Mallette and Sawyer that defendant had told them he was a Crip, a new trial should not be ordered. The evidence of defendant’s guilt, sans Molineux-type evidence, was overwhelming: • Ms. K___ testified that she had rented the apartment to defendant on February 26, 2010, approximately 6 weeks before defendant was arrested, and produced her copy of the written lease agreement (A 203- 09) • Although defendant had started working for Wendy’s less than 3 weeks earlier (A 314), he paid the security deposit and first month’s rent in cash, and expressed a keen interest – after hearing that realtors would be bringing people through the apartment – in buying the place himself, with a $20,000 cash down payment. In tidying up the apartment following 22 defendant’s arrest, Ms. K found a paystub bearing defendant’s name, which she turned over, along with other items, to a friend of defendant (A 211-14, A 1111) • A copy of the lease agreement, together with a National Grid bill, in defendant’s name, for the LeRay Street premises was recovered from the only bedroom there in the course of executing the search warrant (A 283- 87) • Nearly 9 ounces of cocaine was recovered from the kitchen; nearly 3 pounds of marijuana were in garbage bags in the closet of the bedroom; more than $20,000 had been stored in a safe inside that same bedroom closet; an additional 2000 inside the safe inside the closet of the bedroom was little over three ounces of cocaine had been in plain view on the kitchen counter during a protective sweep of defendant’s apartment; over six ounces of cocaine was found stashed in the kitchen cupboards (A 410-43, 755-67) • After defendant had been taken into custody, his mother called authorities to obtain his keys; these were turned over to her after the police verified with Kims that he would agree to that (A 442, 513-14) Because there is no "significant probability … that the jury would have acquitted the defendant had it not been for the error" [People v Crimmins, 36 NY2d 230, 241-242 (1975)], the convictions should be affirmed. See, People v Alfaro, 19 NY3d 1075 (2012). 23 POINT III. The Challenges To Certain Remarks Made By The Prosecutor In Summation Have Not Been Preserved As A Question Of Law Reviewable By This Court, Which Should Not Reverse On The Ground That The Absence Of Objection Establishes That Defendant Was Denied Meaningful Representation At Trial. (Answering Respondent-Appellant’s Point Four) None of defendant’s current complaints about several comments made by the prosecutor in his closing argument has been preserved for review by this Court because no objection was registered in the trial court. CPL §470.05(2); see, e.g., People v Utley, 45 NY2d 908, 910 (1978) (“No objection having been taken to the remarks in the prosecutor's summation that have been raised on this appeal, including the comments expressing confidence in the truthfulness of the police officers, they are not preserved for review in this court”); People v Anonymous, 96 NY2d 839, 840 (2001); People v Melendez, 16 NY3d 869, 870 (2011). Apparently cognizant of this jurisdictional impediment, defendant points to People v Fisher, 18 NY3d 964 (2012), in support of his argument for reversal (Defendant’s Brief, p. 58). Fisher, however, was granted a new trial of the child sex offenses because he convinced a majority of the Court that his trial attorney’s failure to object to the prosecutor’s inflammatory comments in that “highly charged” case constituted a denial of his constitutional right to the effective assistance of counsel. 18 NY3d at 967. This defendant , however, articulates no such Sixth Amendment claim. Indeed, nowhere in his brief does he fault in any 24 way his trial attorney’s zealous advocacy and obviously well prepared performance. But even if the Court were to consider a belated claim of ineffective assistance of counsel,10 it should find it without merit in this case. A defendant who stakes a claim to reversal on this ground “bears the well-settled high burden of demonstrating that he was deprived of…meaningful representation.” People v Hobot, 84 NY2d 1021, 1022 (1995). And in order to prevail on a claim of ineffective assistance of counsel, “it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings….” People v Benevento, 91 NY2d 708, 712 (1998) [internal punctuation and citations omitted]. No such showing has been, or can be, made here. The absence of objection to the prosecutor’s remarks that referenced testimony admitted by virtue of the court’s Molineux-Ventimiglia rulings is wholly understandable. Counsel previously challenged the Molineux-Ventimiglia application, so that broader issue had already been preserved for appellate review. Given the trial court’s preceding rulings in this regard, any of these kind of objections during summation doubtlessly would have not have been sustained – 10 It would be improper for defendant to stake out the Sixth Amendment claim for the first time in his upcoming Reply Brief. See, People v. Grasso, 54 AD3d 180 (1st Dept 2008); People v Clanton, 204 AD2d 810 (3d Dept 1994); People v Minota, 137 AD2d 837 (2d Dept 1988). 25 and judicial disapproval of counsel’s objections would not have furthered defendant’s cause in the eyes of the jury. Trial counsel’s “failure” to object to what defendant now dubs as improper vouching for the credibility of the informants (Defendant’s Brief, pp. 56) was also within the ambit of reasonable professional judgment and strategy. Defendant on appeal blandly describes, in pertinent part, his trial attorney’s summation as having “argued that Sawyer was not worthy of belief” (Defendant’s Brief, p.23 ). In fact, his attorney did not merely argue, e.g., that “Sawyer lied, as he has been lying all along”, that “Sawyer is pretty good at lying” (A 914, 916). He expressly contended that the jurors should not believe the informants who testified because Detective “McNitt told you informants are just not the most trustworthy people in the world” (A 916). “[A]nd we heard from Detective Golden[,] it resonates in my ears, addicts can’t be trusted. That’s all we have here, a bunch of people that cannot be trusted, by the police’s own admission” (A917). Then after branding Tillman as “incredible”, counsel sarcastically added, “But you know, believe the informant, the addict. Oh, I forgot, you just can’t trust addicts, according to Detective Golden” (A 923). It is axiomatic that a prosecutor’s “remarks to the jury must be considered in their relationship to the summation by the attorney for the defendant which had just been finished.” People v Marks, 6 NY2d 67, 77 (1959), cert denied, 362 US 912 26 (1960). In light of the particular nature of these defense counsel comments, the prosecutor’s reminder to the jury that “Detective Golden testified Ken Mallette [had proven] reliable” (A 1127) was not improper. See, People v Halm, 81 NY2d 819, 820 (1993) (“prosecutor's closing statement must be evaluated in light of the defense summation, which put into issue the complainants' character and credibility and justified the People's response”). Consequently, the fact that defendant’s trial attorney voiced no objection to this remark cannot be the basis for a finding of constitutionally deficient performance. After reminding the jury that Tillman was a reluctant witness who came “because, as he said, because he had to, he was subpoenaed to be here,” the prosecutor suggested that “he told you the truth because he was under oath” (A 941). Although this remark would have been better left unsaid, the defense had called Kims’ step-father to the stand to testify under oath. Consequently, a reasonably competent attorney could conclude it would be prudent strategy to not object to that remark. In People v Tonge, 93 NY2d 838 (1999), and more recently, in People v Cass, 18 NY3d 553 (2012), this Court refused to order a new trial on the ground that trial counsel’s failure to object to remarks made by the prosecutor in summation had denied the defendant meaningful representation. No different result should obtain here. 27 POINT IV. Defendant’s Argument That The Trial Court Erred In Instructing The Jury As To Penal Law 220.25(2)’s Permissive Presumption Is Unavailing Because The Trial Evidence Supported That Charge. (In Reply to Respondent-Appellant’s Point One) As was fully discussed in the People’s original brief (pp. 19-24), the trial evidence supported the court’s instructing the jury as to the “drug factory presumption” provided for by Penal Law § 220.25(2). Appellate courts have long held that what constitutes “close proximity” is not fixed by statute and will be made on a case-by-case basis, and that there is no requirement that the defendant be apprehended in the same room as the one where the drugs are found. See, e.g., People v Miranda, 220 AD2d 218 (1st Dept 1995), lv denied, 87 NY2d 849 (1995); People v Riddick, 159 AD2d 596 (2d Dept 1990), lv denied, 76 NY2d 741 (1990). Defendant’s assertion that “[i]f 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 is not even on the premises when the drugs are found” (Defendant’s Brief, pp. 31-32), ignores established precedent, the case-by-case factual analysis that must be a part of the inquiry, as well as the legislative intent of Penal Law § 220.25(2). The cases relied upon by defendant are distinguishable from the matter at hand. For example, the only question presented by People v Pearson, 75 NY2d 28 1001 (1990), was the legal sufficiency of the evidence of defendant’s constructive possession, of cocaine found in the back room of a grocery store, from which Pearson had exited, not any aspect of the jury charge. Moreover, this Court found that there was “no evidence that defendant owned, rented or had control over or a possessory interest in the store or the back room,” and “[p]resence in a public place does not itself prove dominion and control over contraband discovered there.” 75 NY2d at 1002. In this instance, it was established that defendant leased the apartment in question, which was not a public place. In People v Negron, 91 NY2d 788, 793 (1998), where the issue was whether or not the court properly declined to charge a lesser included offense, this Court simply made a passing comment, as part of its larger discussion, that, under the facts of Negron (where the four heroin glassines the defendant was charged with possessing were located at the top of the door frame of the building defendant was standing in front of), “defendant’s constructive possession of the drugs could not have been established by means of any statutory presumption.” And, of course, it makes sense that neither the automobile nor the drug factory subsection would apply in that situation. People v Diaz, 108 Misc 2d 213 (Sup Ct, NY County 1981), which defendant cites for the proposition that “if the person isn’t present on the premises in close proximity to where the drugs are found, then the ‘room presumption’ 29 simply cannot apply” (Defendant’s Brief, p. 32), says no such thing. In Diaz, the question, according to the court, was “[i]f a plastic bag of narcotics is found on the outside sill of a broken kitchen window, is it ‘in open view in a room,’ within the meaning of subdivision 2 of 220.25”? The court answered that question in the negative, and found that the narcotics package in question was “not in open view and was not even in the room.” Diaz, 108 Misc 2d at 213, 218. Again, in this case, the location of the drugs and related paraphernalia is not in dispute. Here, as argued previously, the trial evidence warranted the permissive drug factory charge. Detective McNitt observed defendant and Mr. Sawyer leave the LeRay Street house (defendant’s “stash house”) and walk the short distance to defendant’s vehicle (A 259, 392-94). Immediately surrounded by parole officers who demanded that defendant and Mr. Sawyer show their hands and exit the vehicle, defendant failed to comply, and was apprehended after about a 45-second stand-off (A. 264-267; 399-400). Cocaine was recovered from Mr. Sawyer, on the ground, and in the vehicle (A. 268-69; 347). Defendant began to yell “Call Chino, call Chino!” Concerned that defendant was seeking to alert someone inside the house, Detective McNitt organized the protective sweep (A. 401-03). Additionally, the evidence in plain view bespoke of a “drug factory”: more than three ounces of what proved to be cocaine was sitting in a bowl on the kitchen counter; there were scales, pots and pans covered in white residue, a blender 30 containing white powder residue, glassine envelopes, and a cutting agent; kitchen surfaces were coated with a white powder. The legislative intent is instructive. As defendant acknowledges, the phrase “‘in close proximity’ was . . . ‘intended to include persons who might, upon the sudden appearance of the police, hide in closets, bathrooms, or other convenient recesses’” (Defendant’s Brief, p. 33, quoting People v Kims, 96 AD3d at 1596, which in turn quotes the letter from the New York State Commission of Investigation that is in the legislative bill jacket for L 1971, ch 1044). Indeed, a review of the Bill Jacket shows that the letter from the Commission of Investigation (included in the Addendum to this Brief) was written in response to the McKinney’s Practice Commentary for the “newly enacted subdivision 2 of Section 220.25.” That letter quotes the Commentary as stating that “restricting the impact of the presumption only to those ‘in close proximity’ to the drugs is an attempt to give some of the ‘employees,’ (of illicit drug factories) who are farther removed from the drugs than others, an opportunity to fight their way out of the presumption.” Addendum, p. 8. Importantly, the next paragraph of the letter calls the Commentary “ridiculous,” and explains that the “Commission drafted this legislation in order to accomplish the exact opposite of what [the commentary author] has asserted. . . . It is certainly not intended to give an out to some of the employees of such ‘drug factories’.” Addendum, pp. 8-9. 31 The narrow reading of “close proximity” given by defendant gives just that “out” never intended by the legislative drafters. Moreover, under defendant’s reading, opening one door and hiding in a closet would subject a defendant to the presumption, but opening another door and walking out the front door, or into another room, would remove the presumption. Similarly, under defendant’s line of reasoning, walking out the front door while under surveillance by the police (as was the case here) would remove the presumption, but walking out the front door as the police enter a home, would keep the presumption applicable. To avoid those results, the analysis should remain on the case-by-case basis that is currently permissible. Even assuming arguendo that the trial court erred in its charge, the error is harmless in light of the overwhelming evidence of defendant’s guilt. As an initial matter, the harmless error is not, as defendant asserts (Defendant’s Brief, p. 41), beyond review by this Court; the People need not have argued harmless error at the intermediate appellate level for it to be considered by this Court.11 See CPL §470.35(1). Nor does People v Martinez, 83 NY2d 26, 31 (1993), preclude harmless error analysis. Martinez’s “permitted the jury to conclude” language, quoted by defendant (Defendant’s Brief, p. 40) is regrettably imprecise. The 11 Defendant has perhaps confused the exhaustion requirement generally imposed upon petitioners in federal habeas corpus proceedings with New York’s preservation doctrine, which is concerned with alerting the trial court to potential errors at a time when they can be corrected. See CPL §470.05(2). 32 33 Martinez trial court charged the jury that a person is “presumed to know of such possession [emphasis added].” 83 NY2d at 30. The mandatory nature of the charge is the only possible explanation for the Martinez Court’s conclusion that (a) the jury had been “illegally charged”, and (b) the instruction was therefore not properly subject to harmless error analysis undertaken in other cases, like Griffin v United States, 502 US 46 (1991), where “one of the jury's charged options was not supported by sufficient evidence.” 83 NY2d at 33, and fn. 3. Here, the trial court’s instruction (A 1012, was properly worded in permissive terms that the jury “may, but are not required to . . . infer,” and squarely comported with Penal Law § 220.25(2). A. 1012. For a full discussion of this point, and why there was overwhelming evidence of defendant’s guilt, see the People’s original brief, pp. 25-31, and pp. 22-23 above. In short, the trial court’s charge was permissible under the facts of this case, and the Appellate Division’s order as to this point should be reversed and the vacated Criminal Possession convictions should be reinstated. .