The People, Respondent,v.Marcus D. Hogan, Appellant.BriefN.Y.Jan 13, 2016STATE OF NEW YORK Brief Completed: To Be Argued By: Time Requested: June 18,2015 Robert J. Shoemaker 20 Minutes COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, -vs- MARCUS D. HOGAN, Respondent, Defendant-Appellant. BRIEF FOR RESPONDENT APL- 2015-00035 SANDRA DOORLEY District Attorney of Monroe County Attorney for Respondent By: Robert J. Shoemaker Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4810 Fax: (585) 753-4576 TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTIONS PRESENTED PRELIMINARY STATEMENT STATEMENT OF FACTS POINT I POINT II CONCLUSION Defendant received meaningful representation. The trial court properly granted the People's request for a drug factory presumption charge. -i- ii I 2 4 10 17 23 TABLE OF AUTHORITIES CASES People v Bailey, 13 NY3d 67 (2009, Pigott, J., dissenting in part) ...................... 22 People v Bibbes, 98 AD3d 1267 (4th Dept 2012), lvdenied20 NY3d 931 (2012) .......... I4 People v Brown, 116 AD3d 568 (Ist Dept 2014), lv denied24 NY3d 1001 (2014) ......... 13 People v Caban, 5 NY3d I 43 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v Colon, 90 NY2d 824 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12 People v Colville, 20 NY3d 20 (20 I 2) . .. .. . . . . . .. . . .. . . .. . . . . . . . .. . .. . . . .. . .. . 12, 14 People v Daniels, 3 7 NY2d 624 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 People v Ferguson, 67 NY2d 383 (1986) .......................................... 12 People v Frazier, 63 AD3d 1633 (4th Dept 2009), /v denied 12 NY3d 925 (2009) ......... IO People v Galindo, 23 NY3d 719 (2014) ................... ........ ...... ... . . ... .. 22 People v Helm, 51 NY2d 853 (1980) . . . . . . .. . . . .. .. .. .. . .. . .. . .. . . .. . .. .. .. .. .. .. 11 People v Henderson, 74 AD3d 1567 (3d Dept 2010), /v granted after retrial23 NY3d 963 (2014) ... . .. ... ...... ... . .. ..... .. .. . ..... .. . .. .......................... 15 People v Henriquez, 3 NY3d 210 (2004) .......................................... 12 People v Hogan, 118 AD3d 1263 (4th Dept 2014) .. ........... .. .......... . ....... 2, 3 People v Kims, 96 AD3d 1595 (4th Dept 2012), affd24 NY3d 422 (2014} ......... 17, 18, 19 People v Lasher, 74 AD3d 1474 (3d Dept 2010), lv denied 15 NY3d 894 (2010) .. .. 10, 11, 14 People v Nobles, 29 AD3d 429 (1st Dept 2006), /v denied7 NY3d 792 (2006) .......... 2, 13 People v Pressley, 294 AD2d 886 (4th Dept 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v Quinones, 280 AD2d 559 (2d Dept 2001} .................................. 15 People v Raines, 41 Mise 3d 1204 (A) (Sup Ct, Kings County 2015) . .. . ......... .. .... . 15 People v Riddick, 159 AD2d 596 (2d Dept 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v Robinson, 89 NY2d 648 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v Rodriguez, 194 AD2d 634 (2d Dept 1993) . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. 18 People v Rojas 29 AD 3d 405 (1st Dept 2006), lv denied 7 NY3d 794 (2006) . . . . . . . . . . . . . . 14 People v Sawyer, 96 NY2d 815 (2001) ... ........ . ............................ ... 15 People v Simmons, 10 NY3d 946 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v Smith, 87 NY2d 715 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 People v Snow, 225 AD2d 1031 (4th Dept 1996) . .. . . .. .. .. . . . .. . . . . . . . .. . . .. . . .. . . . 18 People v Sutton, 43 AD3d 133 (1st Dept 2007) ... . ..... . .. ... ..... ....... .. .. . .. ... 14 People v Tejeda, 13 NY2d 958 (1989) ............................................ 22 People v Tirado, 38 NY2d 955 (1976) . . .. . ... . .. .. .. ...... .. ...... .. .. .... ....... 18 People v Washington, 19 AD 3d 1180 (4th Dept 2005), lv denied 5 NY3d 833 (2005) . . . . . . . 12 People v Wiggins, 89 NY2d 872 ( 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 STATUTES CPL 180.80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 CPL 190.50 ............................................................... 3, 13 CPL 210.30 ... ... ......... ... ...... ... ....... . ......... .. ................... 11 CPL 330.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Penal Law§ 220.06 ...................................... .. ................. 2, 4 Penal Law § 220.16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4 Penal Law§ 220.25 ................................................... 3, 8, 17, 18 -iii- Penal Law § 220.50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Penal Law§ 221.05 .... .. ..... . .... .. .... . . . .... . ..... .. .... .. .... .. ..... . .. 4, 5 -iv- QUESTIONS PRESENTED Question: Was defendant denied his statutory right to testify before the grand jury due to ineffective assistance of counsel? Answer of the Trial Court: Not addressed. Answer of the Appellate Division: No. Question: Did the trial evidence warrant a "drug factory" presumption? Answer of the Trial Court: Yes. Answer of the Appellate Division: Yes. l PRELIMINARY STATEMENT This is an appeal from a judgment of Supreme Court, Monroe County (Hon. Joseph D. Valentino, J.) entered August 4, 2006, convicting defendant-appellant Marcus D. Hogan, following a non-jury trial, of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law§ 220.16 ) and Criminal Possession of a Controlled Substance in the Fifth Degree (Penal Law § 220.06 ). The court sentenced the defendant, as a second felony offender, to an aggregate determinate term of imprisonment of nine years plus three years of post-release supervision (Record on Appeal [R] 7). Defendant was released in 2012 and his parole term appears to have ended. (http://nysdoccslookup.doccs.ny.gov [DIN: 06-B-2238]). The co-defendant, Hope Fisher, pleaded guilty on December 9, 2005, to the reduced charge of Attempted Criminal Possession of a Controlled Substance in the Third Degree. She was sentenced on May 16, 2006, to five years of probation supervision. Ms. Fisher did not appeal her conviction. The Appellate Division, Fourth Department, unanimously affirmed the judgment in defendant's case (People v Hogan, 118 AD3d 1263 [4th Dept 2014]). It held, as relevant here, that defendant was not "denied effective assistance of counsel based on his attorney's failure to notify him of his right to testify before the grand jury" (id. at 1264, citing People v Nobles, 29 AD3d 429,430 [1st Dept 2 2006], lv denied 7 NY3d 792 ). "Defendant," the Fourth Department went on, "also was not denied effective assistance of counsel by his attorney's failure to make a timely motion to dismiss the indictment based on the People's alleged violation of CPL 190.50 (5) (a)" (Hogan, 118 AD3d at 1264). The Appellate Division moreover found that the drug factory presumption (Penal Law § 220.25 ) had been properly applied at trial because upon "entering the apartment, the police observed defendant running from the kitchen/living room area not more than 15 feet from where the drugs and drug trafficking paraphernalia were found" (Hogan at 1264 ). A judge of this Court granted leave to appeal (24 NY3d 1219 ). 3 STATEMENT OF FACTS Monroe County Indictment# 0451B/2005 charged defendant with Criminal Possession of a Controlled Substance in the Third Degree (Penal Law§ 220.16 [ 1 ]), Criminal Possession of a Controlled Substance in the Fifth Degree (Penal Law § 220.06), Criminal Use of Drug Paraphernalia (Penal Law § 220.50 ) and Unlawful Possession of Marijuana (Penal Law§ 221.05) (R 8-9). Following defendant's arrest, all parties were prepared to proceed with a preliminary hearing on Friday, May 27, 2005 (R 37). According to defense counsel's recollection at a later court date: "The preliminary hearing, it was scheduled for Friday .... [Defendant] wanted me to subpoena his co-defendant and based on that it was adjourned - the PH was adjourned to the following Wednesday, June 1st. However, I got the notice by Fax not until Friday, late Friday about four o'clock. And I got the letter that indicated it was going to be heard by the Grand Jury the 31st, Tuesday. And so did [defendant], I believe, in the jail. And actually that was the date the Grand Jury voted" (R 37-38, 530-532). At another court date, the prosecutor stated that her predecessor in the case had, in fact, spoken with defense counsel over the phone. Defense counsel had informed her that defendant would not testify before the Grand Jury. "With that, she proceeded to complete the case" (R 47; seeR 538). According to defense counsel, "I said I wouldn't have him testify .... I didn't see the benefit to it, only 4 the harm" (R 48). Counsel apparently did not speak to defendant before deciding not to have him testify (id.) . No written notice of intent to testify appears to have been given by the defendant or by defense counsel (R 538). Following defendant's arraignment, defense counsel brought a written motion seeking to dismiss the indictment for a failure to produce co-defendant Hope Fisher as a Grand Jury witness. No mention was made concerning a purported failure to afford defendant an opportunity to testify at Grand Jury (R 499). It was not until after the court denied defendant's motion to dismiss the indictment (R 28) that defendant, for the first time, claimed he was denied an opportunity to testify at Grand Jury because his attorney never discussed his rights (R 37); this was more than two full months after defendant received the CPL 180.80 notice (compare R 534 with R 36). The court denied this second motion as untimely (R 53). The charges in the indictment stem from events that occurred on May 24, 2005, at an apartment in the 19th Ward neighborhood in the City of Rochester. According to the evidence adduced at the non-jury trial, at about 8:50p.m. on that date, police proceeded to a particular address to execute a search warrant (R 86- 87). They entered the multi-family apartment building through an unlocked door and forced entry, using a battering ram, through the front door of the relevant 5 apartment (R 90-95). Defendant was observed by one of the officers " ... running from the far end, the other side of the room near the kitchen across the doorway, and ran towards the bathroom to our left" (R 98). A female, later identified as Hope Fisher, was located in the living room (R 99). Both defendant and Hope Fisher were taken into custody. At the time of his arrest, $60 was located inside of defendant's right front pocket, in the denominations of 2 twenty-dollar bills, 1 ten- dollar bill, 1 five-dollar bill and 5 one-dollar bills (R 104-1 05). According to the sergeant who supervised the entry into the apartment, "Directly opposite the door, almost directly opposite the door in the kitchen ... was a small countertop. The countertop also had a microwave on it. It was just one single cabinet of the cocaine, packaged cocaine, new and unused, the baggies were found next to each other on top of that countertop. The [loose] cocaine and razor blade were found on the floor in front of that same cabinet" (R 1 09). When the sergeant first saw defendant, defendant was "coming from the living area basically in the area of that countertop" (R 139), "a couple of feet" from the area of the kitchen where the cocaine was located (R 11 0). A search of the remainder of the apartment revealed a marijuana cigarette and a dime bag of marijuana on top of a bed which was in the apartment's living room area (R 181). A cell phone bill, addressed to the defendant at that apartment, was also secured as evidence (R 153- 154). 6 Approximately five months after she pleaded guilty and two weeks before she was sentenced, Hope Fisher testified on defendant's behalf that she, not defendant, was the one who brought the drugs inside of the apartment (R 328- 330). She admitted that her intent with regard to the cocaine was to consume some and to sell some (R 331). Notwithstanding her attempt to distance defendant from the drugs located inside of her apartment, Ms. Fisher acknowledged, after a review of her plea colloquy, that she previously told the court that prior to the execution of the search warrant, defendant stayed at the apartment "from time to time" (R 367-368). However, she did not recall admitting upon her plea that defendant knew that the drugs were in the apartment, even when confronted with her plea minutes at defendant's trial (R 376; seeR 579-581). Defendant testified he lived (on and off) with Hope Fisher (the mother of his child) in the apartment until April 26, 2005 (R 391-392). Defendant claimed he moved out of the apartment on April26 and began living with his sister and her husband in Ogden. When asked to explain why he was inside of the apartment at the time the warrant was executed, defendant testified he was inside of the apartment for approximately 3 hours and 20 minutes before the police broke through the door (R 408). Defendant recalled that Hope Fisher had left the apartment to run errands, during which time he took a shower. According to 7 defendant, when he exited the bathroom he came face to face with the police (R 402-404). After the close of proof, the People requested Supreme Court to charge itself with the drug factory presumption under Penal Law § 220.25 (2) (R 426). Defense counsel opposed on the grounds that there was no evidence that the drugs were in open view (R 430). The court decided to so charge itself (R 433). In his closing, the prosecutor remarked on the "six already bagged pieces of cocaine ... in open view," the "fifty unused glassine baggies, "a large piece of cocaine on the floor which I assert [to] you has been cut up as evidenced by the small pieces on the ground," and the "razor blade nearby" (R 470-471). These items, said the . prosecutor, "clearly demonstrate this apartment was being used to prepare drugs for sale" (R 471). The following day, the court rendered its decision. Preliminarily, the court found that there was insufficient proof of constructive possession; however, it found the defendant guilty of Criminal Possession of a Controlled Substance in the Third and Fifth Degrees because of the drug factory presumption (R 475-476). Defendant was acquitted of Criminal Use of Drug Paraphernalia and Unlawful Possession of Marijuana. Prior to sentencing, defendant filed a CPL 330.30 motion alleging, as relevant here, that the court should not have considered the drug factory presumption (R 555). The motion was denied (R 558, 485). 8 The court sentenced the defendant, as a second felony offender, to an aggregate determinate term of imprisonment of nine years plus three years of post- release supervision (Record on Appeal 7). This appeal ensued. 9 POINT I DEFENDANT RECEIVED MEANINGFUL REPRESENTATION Defendant complains his attorney failed to discuss with him his right to testify before the Grand Jury. Aside from the alleged inaction of defense counsel with regard to the grand jury issue, defendant argues no other conduct that could be construed as ineffective assistance of counsel. Defendant's argument is procedurally barred. At the outset, defendant's specific claim of ineffective assistance of counsel is for a period of time beginning after defendant's city court arraignment and lasting until the arraignment on the indictment. Inasmuch as defendant's contention that his pretrial counsel was ineffective raises issues that are outside the record, such claims are more properly the subject of a CPL article 440 motion (see People v Frazier, 63 AD3d 1633, 1634 [4th Dept 2009], lv denied 12 NY3d 925  [claim of ineffective assistance with respect to discussing defendant's case with defendant or failing to secure defendant's right to testify before the Grand Jury is a contention involving matters outside the record on appeal]; see also People v Lasher, 14 AD3d 1474 [3d Dept 2010], lv denied 15 NY3d 894 10 ). However, even assuming no procedural bar, defendant's claim is without merit. Defendant was afforded meaningful representation. ''To be sure, a prospective defendant has no constitutional right to testify before the Grand Jury" (People v Smith, 87 NY2d 715, 719 ). Indeed, "[i]n contrast to a defendant's right to testify at trial, a defendant's right to testify before the grand jury is a limited statutory right" (People v Lasher, supra, at 1475). Even when a defendant's attorney does not communicate with him about his Grand Jury rights, such a single error would not render his representation ineffective. It is well-settled that a defense counsel's failure to notify the People that defendant wished to testify before the Grand Jury does not, by itself, amount to ineffective assistance of counsel (People v Wiggins, 89 NY2d 872, 873 ; see People v Helm, 51 NY2d 853 ). ''To elevate the kind of representational lapse, as occurred here at the Grand Jury phase, to an automatic delayed reversal device would be anomalous in the face of' the statute barring review of legal sufficiency of the Grand Jury presentation, where there has been a conviction based on legally sufficient trial evidence (Wiggins at 874, citing CPL 210.30 ). II Unlike certain fundamental decisions, such as whether to testify at trial, which are reserved to the defendant, "strategic and tactical decisions" like testifying before the grand jury are deemed to be left to the decision-making authority of a defendant's lawyer (People v Colon, 90 NY2d 824, 826 ). Fundamental decisions include "whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal" (id. at 826-827). Decisions deemed strategic, and which are therefore to be made by defense counsel, include whether to seek a jury charge on a lesser-included offense (People v Colville, 20 NY3d 20 ), whether to ask for a mistrial (People v Ferguson, 61 NY2d 383 ), whether to concede guilt on a lesser-included offense (People v Washington, 19 AD3d 1180 [4th Dept 2005], lv denied 5 NY3d 833 ), "if and when to object, call witnesses and develop particular defenses" (People v Henriquez, 3 NY3d 210, 226 [2004 ]), and the decision of whether to testify before the grand JUry. The "strategic decision to testify before the grand jury requires the expert judgment of counsel because it involves weighing the possibility of a dismissal, which, in counsel's judgment, may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses" 12 (People v Brown, 116 AD3d 568 [1st Dept 2014], lv denied 24 NY3d 1001  [quotation omitted]). The potential disadvantages of having a defendant testify in grand jury were explained by this Court in People v Robinson (89 NY2d 648, 653- 654 ) and were recognized by defense counsel in this case (R 48 ["I didn't see the benefit to it, only the harm"]). The prosecutor conducts the proceedings in grand jury. It is therefore she who determines "what evidence to present to that body and what evidence to be excluded"; it is she who provides legal instruction; and it is she who has "an opportunity to cross-examine a testifying defendant or any witness called by the Grand Jury at the defendant's request" (Robinson at 653). Here, then, "the attorney's belief that it was better for defendant not to testify before the grand jury could have been a reasonable decision by counsel ... concerned with the perils of providing a prosecutor with potential impeachment material at trial" (People v Nobles, supra, 430 [quotation omitted] [attorney, without consulting his client, withdrew notice of defendant's intent to testify before the grand jury]). Incidentally, swaths of defendants have no right even to know that a grand jury is hearing a case against them (CPL 190.50  [a] [''The district attorney is not obliged to inform such a person that such a grand jury proceeding against him is pending, in progress or about to occur unless such person is a defendant who 13 has been arraigned in a local criminal court upon a currently undisposed of felony complaint..."]). In any event, defendant has failed to show any actual prejudice which would have affected the outcome of this case. Had counsel made a timely motion, the court granted it, and defendant testified at a new grand jury proceeding, there is no indication that his testimony would have affected the outcome of the proceedings (see People v Rojas 29 AD3d 405,406 [1st Dept 2006], lv denied 7 NY3d 794 ). The court, sitting as the trier of fact, heard testimony from both defendant and Ms. Fisher and still found defendant guilty. Stated simply, all that his appearance before the grand jury would have done would be to give the prosecutor a preview of the defense (id.). In other words, "defendant failed to establish that he was prejudiced by the failure of his attorney to effectuate his appearance before the grand jury" (People v Simmons, 10 NY3d 946 ; People v Bibbes, 98 AD3d 1267, 1270 [4th Dept 2012], lv denied20 NY3d 931 , citing People v Sutton, 43 AD3d 133, 136 [1st Dept 2007], affd sub nom. People v Simmons, supra). Although there is now a claim that had he testified in the grand jury, the outcome would have been different, the strength of the case and the result at trial belies that claim, and such a claim was not made in defendant's original motion below (R 526-529; see People v Lasher, 74 AD3d 1474, 1476 [3d Dept 2010], lv 14 denied 15 NY3d 894 ; see also People v Raines, 47 Mise 3d 1204 [A] [Sup Ct, Kings County 20 15] [collecting cases]). Counsel was not ineffective for deciding not to have his client testify in the grand jury. Nor was he ineffective for not moving to dismiss the indictment for untimely notice. Even had defense counsel argued that he was not given timely notice of a grand jury presentation, the motion would have been denied. Simply put: this was not a notice issue; defense counsel had already decided that he would not have his client testify before the grand jury. If defense counsel had made a successful motion, the remedy would have resulted in his client testifying before a new grand jury M a situation counsel had already sought to avoid. And in any event, the People gave timely notice, irrespective of defense counsel's availability on the Friday afternoon before the presentation (see People v Sawyer, 96 NY2d 815, 817 [200 1] [notice given two days before presentment]; People v Henderson, 74 AD3d 1567, 1568 [3d Dept 2010], lv granted after retrial23 NY3d 963  [notice given on Friday for Tuesday presentment; reversed on other grounds]; People v Quinones, 280 AD2d 559 [2d Dept 2001]). A motion alleging untimely notice would have had little or no chance of success; defense counsel could not therefore have been ineffective for failing to make such a motion (People v Caban, 5 NY3d 143, 152 ). 15 Notwithstanding defendant's complaint concerning his attorney's pre- indictment representation, his attorney was actively involved in the pre-indictment proceedings. His decision not to have his client testify in grand jury was a strategic decision, founded on the well-known disadvantages of such testimony occurring. Aside from the alleged inaction of defense counsel with regard to the grand jury issue, defendant argues no other conduct that could be construed as ineffective assistance of counsel. Defendant's conviction should thus be affirmed. 16 POINT II THE TRIAL COURT PROPERLY GRANTED THE PEOPLE'S REQUEST FOR A DRUG FACTORY PRESUMPTION CHARGE Contrary to defendant's contention, the evidence adduced at trial warranted the court's charge regarding the "drug factory" presumption contained in Penal Law§ 220.25 (2) (see People v Kims, 24 NY3d 422,433 n 3  [" ... the more accurate reference, and the one we adopt, is the 'drug factory' presumption"]). Penal Law § 220.25 (2) provides that the "presence of a narcotic drug ... [or] marihuana ... in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found." The People's evidence met these standards. In this case, the police testimony and physical evidence established that crack cocaine was being packaged for sale, in open view, in the kitchen /living room area of the apartment in question. Defendant was observed by the police running from the area where the drugs were visible, placing him in close proximity thereto. Therefore, the drug factory presumption of Penal Law § 220.25 (2) was applicable. 17 Initially, defendant attacks the application of the room presumption charge because he believes the cocaine was not in plain view. But police testimony at the trial revealed that baggies were found on a countertop in the kitchen, along with new and unused cocaine (R 1 09). Loose cocaine and a razor blade were found on the floor in front of the same cabinet (id.), where they would have likely fallen or been dropped in the panic that would have attended the battering ram's first attempts at entry into the apartment. Defendant similarly attacks the presumption based on his lack of proximity to the drugs. But the room presumption "does not require that a defendant be found in the same room as the narcotics" (People v Riddick, 159 AD2d 596, 597 [2d Dept 1990]; see, e.g., People v Pressley, 294 AD2d 886 [4th Dept 2002] [cocaine in living room; defendant in upstairs bedroom]; People v Rodriguez, 194 AD2d 634 [2d Dept 1993] [narcotics in bedroom; defendant in living room]; People v Snow, 225 AD2d 1031 [4th Dept 1996] [drugs in dining room; defendant in basement]). This is true regardless of the fact that co-defendant Fisher apparently lived in the apartment. The presumption is meant to apply "regardless of any individual's property interest in the location where the drugs are found" (People v Kims, 24 NY3d 422,433 ). And "[p]ossession if joint is no less possession" (People v Tirado, 38 NY2d 955, 956 [ 1976]). 18 The recent case of People v Kims is readily distinguishable. In that case, the defendant was apprehended outside of his apartment, after leaving out the "front" -drugs were found in the back of the apartment (96 AD3d 1595, 1596 [4th Dept 2012] affd 24 NY3d 422 ; but see People v Daniels, 37 NY2d 624  [defendant arrested after leaving his apartment]). Importantly, "no evidence suggest[ed] that [defendant] was in immediate flight from the premises" in Kims (24 NY3d at 425). On the other hand, defendant in our case was discovered in the apartment, in close proximity to the drugs, baggies, and razor. A police witness indicated that he was running towards the bathroom upon officers' entry into the apartment. The facts of this case, therefore, mirror the circumstances with which the legislature was specifically concerned when it created the presumption. ''The statute," after all, "is intended to apply to a defendant who hides 'in closets, bathrooms or other convenient recesses"' (id. at 434 [quoting Letter from St. Comm'n of Investigation at 7]; see also id. at 434 [citing similar cases in which a defendant was found in a bathroom]; and id. at 435 [citing the Appellate Division decision in this case, noting defendant was "fleeing the room with drugs and paraphernalia"]). The apartment in this case was described by members of law enforcement as being very small (R 149, 181). The kitchen I living room area was considered to be 19 "one room" and a bed was found in the living-kitchen area of the house (R 182- 183). In addition to the small size of the apartment, defendant was in close proximity to the drugs which the officers found in plain view. Rochester Police Sergeant David Druzynski testified that once the door to the apartment was breached, he observed: " ... a male black (later identified as defendant) run from this area across from the area right between the dining room and kitchen across the kitchen which is, you know, opposite the doorway and into the area of this hallway here leading to the bathroom and back bedroom" (R 98-99). When asked how close defendant was to the cocaine, Sergeant Druzynski testified "He was right there" (R 110). Sergeant Druzynski estimated that when officers breached the door, defendant was within a couple of feet from where the cocaine was located (id.). Finally, it is apparent that the packaged cocaine was not hidden, as it was positioned on the kitchen counter directly in front of the microwave. Officer Houlihan testified that he did not recall any pieces of furniture covering the cocaine which was found on the floor, and while there was other debris on the floor, he did not recall having to move anything in order to see the cocaine (R 302- 303). Ultimately, by his own admissions, defendant was inside of the apartment for some three hours and twenty minutes before the warrant was executed. During 20 those three plus hours, defendant apparently had free reign inside of the apartment (R 408-409), where drugs were out in the open. There was also sufficient evidence that the drugs found inside of the apartment, which were left in open view, were being prepared for package and sale. At trial, expert testimony was elicited that street level sales of illegal drugs usually involve small quantities that sell for five, ten, twenty and sometimes fifty dollars. The most common method of packaging of illegal drugs involves small ziplock style bags of various colors, designs, and sizes (R 270-271). According to law enforcement, during their execution of the warrant, six packaged "dime" bags of crack cocaine were found on the kitchen counter of the apartment. Accompanying the six baggies of cocaine were 50 unused zip lock baggies of the sort that "are commonly used for the unlawful packaging, sale and distribution of illegal narcotics such as crack cocaine" (R 287). When asked whether six packaged baggies of cocaine could be consistent with a "drug trafficker," one officer testified, "Often times it is. It's all they have left" (R 300). Even Hope Fisher acknowledged that when the police entered the apartment, a razor and items which are commonly used to package cocaine were found (R 337). While defendant claims he was merely present in the apartment, he was present under circumstances that made his possession of the drugs apparent. The 21 police testimony and physical evidence proved the drugs were in open view in the kitchen and the surrounding paraphernalia (50 unused clear ziplock baggies and a single-edged razor) indicated that the drugs were being packaged in street-sale amounts. In short, the People proved that defendant was neither a mere visitor nor a buyer who happened to be on the premises when the warrant was executed. Thus, under the facts in this case, viewed in a light most favorable to the People and giving the People the benefit of every reasonable inference to be drawn therefrom (People v Tejeda, 73 NY2d 958,960 ; People v Galindo, 23 NY3d 719,724 ; People v Bailey, 13 NY3d 67, 73 [2009, Pigott, J., dissenting in part]), the court properly charged the "drug factory" presumption as it related to the cocaine possession charges. 22 CONCLUSION The judgment of conviction should be affirmed. Dated: June 18, 2015 23 Respectfully submitted, SANDRA DOORLEY BY: ROBERT J. SHOEMAKER Assistant District Attorney Ebenezer Watts Building Suite 832 Rochester, NY 14614 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- MARCUS D. HOGAN Appellant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Catherine McFarlane, being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen (18) years and resides at Rochester, New York. That on the 18th day of June, 20 15, deponent served three (3) copies of the brief for Respondent, upon Shirley A. Gonnan, Esq., attorney for defendant-appellant in this action at P. 0. Box 629, 19 Market Street, Brockport, NY, 14420, by depositing a true copy of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody ofthe United States Postal Service within the State ofNew York. Sworn to before me this 18th day of June, 2015. JEANNE T. HELLER 'OTARY ~IC. State ot ~_y., 'fonr~ ' Commrss10n Expln STATE OF NEW YORK COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- PDF CERTIFICATION MARCUS D. HOGAN, Appellant. I, ROBERT J. SHOEMAKER, ESQ., certify that I am an attorney admitted to practice in the State of New York, and that I compared the PDF brief and it is identical to the filed original printed materials. DATED: June 18, 2015 ROBERTJ.SHOEMAKER,ESQ.