The People, Respondent,v.Marcus D. Hogan, Appellant.BriefN.Y.January 13, 2016To be argued by Shirley A. Gorman Time requested: 20 minutes APL-20 15-00035 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -v- MARCUS D. HOGAN, Appellant. BRIEF FOR APPELLANT Brief Completed: April27, 2015 SHIRLEY A. GORMAN Attorney for Appellant PO Box 629, 19 Market St. Brockport, NY 14420 Telephone: (585) 637-5645 Facsimile: (585) 637-5644 TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTIONS PRESENTED PRELIMINARY STATEMENT STATEMENT OF FACTS POINT I: Mr. Hogan was deprived of the effective assistance of counsel when his assigned attorney failed to discuss his right to testify before the grand jury with him and then did not timely move to dismiss the Indictment for insufficient notice of the grand jury Page No. 1 1 2 6 proceeding. 18 POINT II: The drug factory presumption should not have been employed to convict Mr. Hogan of possessing cocaine. 36 CONCLUSION 46 -a- TABLE OF AUTHORITIES New York Statutes: Criminal Procedure Law§ 180.80 Criminal Procedure Law§ 190.50 (5) Criminal Procedure Law§ 190. 50 (5) (a) Criminal Procedure Law§ 190.50 (5) (c) Criminal Procedure Law§ 210.20 (1) (c) Criminal Procedure Law§ 210.35 (4) Criminal Procedure Law § 260.1 0 Criminal Procedure Law § 320.10 Penal Law § 220.06 (1) Penal Law§ 220.09 (13) Penal Law§ 220.16 (1-7) Penal Law§ 220.25 (2) New York Cases: Page No. 26 18 31,32 28,31,32 33 33 33 21 21 37 37 37 36,44 People v Bibbes, 98 AD3d 1267 (4th Dept 2012), rearg 100 AD3d 1473 24 People v Brown, 116 AD 568 (1st Dept 2014 ), lv denied 24 NY3 d 1001 23 People v Brumfield, 24 NY3d 1126 (2015) 18, 21 -i- TABLE OF AUTHORITIES People v Caban, 5 NY3d 143 (2005) People v Clermont, 22 NY3d 931(2013) People v Colville, 20 NY3d 20 (2012) People v Corrigan, 80 NY2d 326 (1992) People v Corona, 149 Mise 2d 581 (Sup Ct Bronx Cnty 1991) People v Cox, 19 Misc3d 1129 (A) (Sup Ct NY Cnty 2007) · People v Degnan, 246 AD2d 819 (3rd Dept 1998) People v Evans, 79 NY2d 407 (1992) People v Ferguson, 67 NY2d 383 (1986) People v Finnegan, 85 NY2d 53 (1995) Page No. 30 30,31 19,20,21 23,28 18 28 25 32,33 20,27 21 37 People v Galleria, 264 AD2d 899 (3rd Dept 1999), lv denied 94 NY2d 880 27 People v Galindo, 23 NY3d 719 (2014) 42 People v Helm, 51 NY2d 853 (1980) 21 People v Henderson, 74 AD3d 1567 (3rd Dept 2010), modified 74 AD3d 1567 32 People v James, 92 AD3d 1207 (41h Dept 2012), iv denied 19 NY3d 962 24 . People v James, 266 AD2d 236 (2nd Dept 1999) 40 People v Jordan, 153 AD2d 263 (2nd Dept 1990) lv denied 75 NY2d 967 32 -ii- TABLE OF AUTHORITIES Page No. People v Kims, 24 NY3d 422 (2014) 38,39,40 People v Lasher, 74 AD3d 1474 (3rd Dept 2010), lv denied 15 NY3d 894 24 People v McMoore, 203 AD2d 612 (3rd Dept 1994) 27 People v McMoore, 214 AD2d 893 (3rd Dept 1995), lv denied 86 NY2d 796 28 cert denied sub nom McMoore v New York, 516 US 1096 People v Moore, 249 AD2d 575 (3rd Dept 1998), lv denied 92 NY2d 857 32 People v Petrovich, 87 NY2d 961 (1996) 21 People v Pugh, 207 AD2d 503 (2nd Dept 1994) 32 ·People v Simmons, 10 NY3d 946 (2008) 22, 29 People v Smith, 87 NY2d 715 (1996) 18, 19, 20 People v Staley, 123 AD2d 407 (2nd Dept 1986), lv denied 68 NY2d 1004 39 People v Stultz, 2 NY3d 277 (2004) 31 People v Turner, 5 NY3d 476 (2005) 31 People v Weis, 56 AD3d 900 (3rd Dept 2008), lv denied 12 NY3d 763 27 People v Wiggins, 89 NY2d 872 (1996) 22 People v Williams, 19 NY3d 100 (2012) 37 -iii- TABLE OF AUTHORITIES Constitutions: New York State Constitution, art 1, § 2 New York State Constitution, art 1, § 6 Rules: Rules ofProfessional Conduct, 22 NYCRR 1200, Rule 1.2 (e) Legislation: Memorandum of State Commission of Investigation, Bill Jacket, L 1971, ch 1044 Criminal Jury Instruction: CJI2d[NY] Penal Law 220.25 (2) Appellate records: People v James, 266 AD2d 236, Brief for Respondent People v Staley, 123 AD2d 407, Respondent's Brief People v Wiggins, 98 NY2d 872, Appellant's Brief Brief of Defendant-Respondent Bruce Wiggins -iv- Page No. 21 35 29 37 42 40 39,40 22 22 TABLE OF AUTHORITIES Page No. Miscellaneous: Bronx Defenders, Who We Are, www.bronxdefenders.org 28 Office of Indigent Legal Services, Standards and Performance Criteria: Standards and Criteria for the Provision of Mandated Repre.sentation in Cases Involving a Conflict of Interest, www.ils.ny.gov/ 33 -v- QUESTIONS PRESENTED Was this criminal defense attorney ineffective for failing to consult his client before deciding not to offer his testimony to the grand jury and for neglecting to make a timely motion to dismiss for insufficient notice of the grand jury presentment? The Fourth Department held no. Supreme Court did not decide this issue. Should the drug factory presumption be used when there is only proof of intent to sell drugs, not proof of intent to package or otherwise prepare drugs for sale? The courts below held yes. 1 PRELIMINARY STATEMENT Marcus Hogan was charged with criminal possession of a controlled substance in the third and fifth degrees, criminally possessing drug paraphernalia in the second degree and unlawful possession of marihuana by Indictment Number 2005-0451B filed in Supreme Court, Monroe County on June 17, 2005. Appendix (hereinafter A)8-18. Assigned counsel for Mr. Hogan received notice the grand jury would hear ' evidence on the same day that Indictment was voted. A527-528, A534. At 3:55p.m. on the Friday afternoon before the three-day Memorial Day weekend, the prosecutor fax'd notice the case would be presented to the grand jury on Tuesday. A527-528, A531-534, A541-543. The defense attorney was out of the office then until Tuesday morning. A527-528. On that day he did tell an Assistant District Attorney that Mr. Hogan would not be testifying. AS 3 8. He never discussed Mr. Hogan's right to testify in the grand jury with him before making that decision. A528. Counsel did not move to dismiss the Indictment for the lack of sufficient notice of the grand jury presentment until more than 59 days after arraignment and then only at his client's insistence. A525-534; A37-38. Supreme Court denied the motion as untimely made. A544-545. Counsel was relieved for other reasons and new counsel assigned. A57 -61. 2 The Honorable Joseph D. Valentino presided over Mr. Hogan's bench trial. A67-479. On multiple occasions counsel objected to the court's consideration ofthe drug factory presumption. During his trial order of dismissal motion, he argued that evidence supporting the presumption was insufficient because only one of the witnesses placed his client in a position for which the drug factory presumption could apply. A310, A312-313. The trial order of dismissal motion was denied. A320-321. He renewed his motion for a trial order ofdismissal at the close of all proof. A436. He argued specifically then that the drug factory presumption did not apply to the First and Second Counts because Co-defendant Fisher had the drugs in her hands when police arrived and Mr. Hogan was in the bathroom. A436-437. The court again denied the motion. A438. In the charge conference Mr. Hogan's attorney argued that there was insufficient evidence to apply the presumption, asserting that the evidence· was against it. A429. He added that there was no evidence the drugs were in open view. A429-430. The court ruled that it could consider the presumption while deliberating. A433. In his summation, which the court had indicated could be part of his legal arguments, counsel argued that since Mr. Hogan was in the bathroom, the presumption did not prove the case. A436, A447. He also argued that the cocaine on the floor was not in open view. A449. He argued that the court could not find Mr. 3 Hogan guilty using the drug factory presumption because it could not find "there was a drug factory going on in this premises, six bags, personally using, not a drug factory. Loose rock. Razor blades. Okay. Baggies. But are we talking a drug factory here sufficient to involve the room presumption? I don't believe so." A450. He also argued again in summation that the exception to the presumption applied because Ms. Fisher had the drugs in her hands. A450-451. Justice Valentino found Mr. Hogan guilty of criminal possessiOn of a controlled substance in the third and fifth degrees. A475-476. He acquitted Mr. Hogan of the other two charges. A476. The court specifically found insufficient evidence to convict under a constructive possession theory without considering the presumption. A475. Counsel moved to set aside the verdict on the grounds that the drug factory presumption should not have been considered but the court denied that motion. A551-556; A557-558. In his motion papers counsel alleged specifically that there was no evidence to support it and that the drugs were in Ms. Fisher's physical possession. A555. The court issued a written decision and order reiterating that the statutory presumption was properly applied because the drugs were in plain view and Mr. Hogan was in close proximity, seen fleeing from the area where they were found. A557-558. On August 4, 2006, Mr. Hogan was sentenced to concurrent determinate terms 4 ofincarceration of nine years and three years with periods of post-release supervision on each thereafter. A 7. By Memorandum and Order entered June 13, 2014, the Appellate Division, Fourth Department affirmed Mr. Hogan's judgment of conviction. A4-6. The Court held that the drug factory presumption was appropriately considered because Mr. Hogan was seen running from an area not more than 15 feet from where the drugs and drug paraphernalia were found. A4. The Court also held that Mr. Hogan was not denied the right to the effective assistance of counsel based upon counsel's failure to notify Mr. Hogan of the right to testify or his failure, without more, to timely move to dismiss for inadequate notice of the grand jury proceeding. A4-5. Chief Judge Jonathan Lippman granted Mr. Hogan leave to appeal on February 3, 2015. A3. Counsel was assigned by order entered March 26, 2015. A587. 5 STATEMENT OF FACTS Marcus Hogan spent Memorial Day weekend of 2005 in the Monroe County Jail waiting for a preliminary hearing on his felony drug possession charges. Police had executed a search warrant on Tuesday during which he was arrested. A85-87, A173-174. ThehearingoriginallyscheduledforFriday,May27,2005, was adjourned until the following Wednesday to subpoena the co-defendant as a defense witness. A37-38. At almost 4 p.m. on Friday afternoon, the defense attorney's fax machine received notice the case would instead be presented to the grand jury on Tuesday at 1:45 p.m .. A38, A530-532. By then defense counsel was already out of the office for the long weekend. A527 -528. The attorney found the notice on Tuesday. A528. It was not until they appeared in Rochester City Court on Wednesday that counsel discussed Mr. Hogan's right to testify before the grand jury with him. A46, A528. The People had already presented the case and secured an indictment. A534. This attorney decided without consulting with him that Mr. Hogan would not testify and communicated that decision to an Assistant District Attorney when 'She called on Tuesday. A47-48. Mr. Hogan was arraigned on Indictment Number 2005-0451 on June 21, 2005 6 in Supreme Court, Monroe County. A19-25. The attorney assigned as counsel in City Court continued to represent him. A20. The parties appeared on August 2, 2005 for motion argument. A26-35. In his omnibus motion, counsel moved to dismiss the Indictment on the grounds the grand jury proceeding was defective but argued only that the co-defendant should have been called as a grand jury witness in accordance with his request. A492-493, A498-500; A505-506. The Assistant District Attorney received a notarized letter from that co-defendant indicating that the drugs were hers, not Mr. Hogan's. A10-13. 1 This motion was denied. A27-28. At an appearance two weeks later, defense counsel indicated that Mr. Hogan wanted the court to review the sufficiency of the grand jury notice. A3 7. Counsel acknowledged not having made a motion for dismissal on that ground in his omnibus motion. A38. At the court's request, counsel subsequently made the motion in writing. A38; A525-534. On September 1, 2005, the court heard argument about that motion to dismiss pursuant to Criminal Procedure Law Sections 190.50 (5) (c), 210.20 (1) (c) and 210.35 (4) made in papers dated August 19, 2005, 59 days after arraignment. A43- 48; A525. Defense counsel indicated while in court that his client wanted, and still did want, to testify before the grand jury. A45. He admitted that he did not talk to Mr. 1 The CPL 710.30 notice identifies June 3, 2005 as the date ofthat letter. 7 Hogan about his right to testify until the court appearance the next day, an appearance at which the People filed a certification that an indictment had been voted. A46, A534. He acknowledged a phone call with an Assistant District Attorney on the Tuesday the grand jury sat during which he thought she asked if Mr. Hogan would be testifying and he told her he would not have his client testify. A 4 7-48. He repeated that he had not talked to his client about that decision but he saw no benefit and only harm from such testimony. A48. The court issued a written decision and order on September 27,2005 denying this motion as untimely since CPL 190.50 ( 5) (c) requires it be made within five days of arraignment. A544-54 7. The Fourth Department concluded that counsel was not ineffective for failing either to notify Mr. Hogan about the right to testify before the grand jury or to timely move to dismiss on the inadequacy of the grand jury notice. A4-5. Mr. Hogan's assigned trial attorney was replaced by another on October 13, 2005. A57 -61. The trial began on May 1, 2006 without a jury. A67. Three days later Mr. Hogan was convicted of criminal possession of a controlled substance in the third and fifth degrees. A 7, A4 7 5-4 7 6. While rendering the verdict, the court indicated that there had been insufficient proof under a constructive possession theory without the presumption in Penal Law§ 220.25 (2). A475. The court acquitted Mr. Hogan of two 8 other counts of the Indictment, criminally possessing drug paraphernalia in the second degree and unlawful possession of marihuana. A476. The trial revealed that on May 24, 2005 at about 8:50p.m. police executed a search warrant on an apartment in Rochester. A85-87. Co-defendant Hope Fisher lived at that apartment. A325-326. Ms. Fisher and Mr. Hogan had been the parents of two sons, one of whom died when two and a half months old about five weeks before the search warrant execution. A332-333, A391-392. In the early evening before the search warrant was executed, Mr. Hogan went to see Ms. Fisher to make sure she was doing okay. A402. He was hoping to reconcile by telling her that he was looking for work and doing odd jobs. A402. Their relationship had been on and off again for about three or four years. A344. Mr. Hogan testified that at one point that night Ms. Fisher left the apartment. A403, A408. He went to the bathroom to clean up because he and Ms. Fisher had had sex. A403-404, A408-409. When police arrived, Ms. Fisher had just sat down at the kitchen table with the drugs. A329-330,A346-347. Various police officers said they found her towards the north wall of the living room; in the living/dining room area toward the south and north wall of the living room; in the kitchen/living room area, and in the middle of the kitchen area. A40-41, A282; Al49, A151, A159-160; A182; A209-210. 9 According to both Ms. Fisher and Mr. Hogan, he was in the bathroom when police arrived. A330, A404-405, A417-418. Only one of the five police officers who testified (the fourth to enter) said Mr. Hogan was running toward the bathroom when they entered. A97 -1 0 1. The police officer who hit the door to enter Ms. Fisher's apartment was Officer Padilla. A95, A124, A169, A193, A206, A279. Since he used the battering ram, he entered last. A 124, A 193, A207. The first person to actually enter was the officer with the shotgun. A97, A207, A298. On this night Officer Brigante had the shotgun. A97, A168-169, A207, A298. Officer Brigante led, followed by two other officers and then the Sergeant. A97. Officer Brigante immediately saw the woman toward the south wall of the living room. A149, A151. He said that because of her hair, she looked like she just woke up. AlSO. He did not observe anyone else upon entering. A 151-15 2. He characterized the apartment as "very small." A 149. The first officer in the apartment did not see Mr. Hogan until he was being led by other officers from the bathroom area. A 161. The prosecutor did not call as a witness the officer who entered second in line, typically the person carrying the halogen tool. A279. On this night that person was Officer Villa. A169, A280. Officer Carbone!, who did not remember if he entered third or fifth Gust before 10 or just after Sergeant Druzynski), first saw Mr. Hogan when he was prone in the bathroom/bedroom hallway, the direction to which this officer went immediately. A171-173, A180-181. All officers were directing people to the floor as they entered. A170, Al80-181. This officer did not see Mr. Hogan running in that direction as police entered. Al81. He ordered Mr. Hogan to put his hands behind his back and handcuffed him. Al73-174. Officer Carbone! believed he was the only officer there at the time. Al81. He located $60 in Mr. Hogan's pants pocket, two twenty-dollar bills, a ten, a five and five ones. A104-105, A175. Sergeant Druzynski entered fourth. A97. It was only Sergeant Druzynski who put Mr. Hogan running across the doorway within a couple feet of the area where the drugs were found. A98, AIIO, A116, A139. It was only Sergeant Druzynski who testified that Mr. Hogan moved at all. The officers who followed the Sergeant never saw Mr. Hogan anywhere but in the bathroom hallway. A261, A281-282. When both Officer Padilla (who was last) and Officer Houlihan entered, Mr. Hogan was already prone being handcuffed. A207- 208, 223-224, A261, A282-283. Officer Houlihan initially said he had shotgun that night but then later corrected himself and said he came in toward the back. A276, A279, A281, A297. After the apartment was secured, Officer Houlihan noticed numerous bags, some containing crack cocaine, on a kitchen counter. A283. Mr. 11 Hogan was 10 to 15 feet away in the hallway to the bathroom at that time. A281-282, A284. Officer Padilla described the apartment as very compact. A207. He took photographs of the apartment immediately after it was secured. A211. The search commenced after these photographs and he then took photographs of the items found. A211, A214, A218-219. Police found next to the microwave on a kitchen counter a small quantity, six bags, of crack cocaine with a red lips design inside a sandwich bag as well as a larger bag with about 50 new and unused baggies different from those containing the cocaine. A107, A112-115, A128-129, A219-220, A223, A258-259, A284, A286, A288, A300-301. The unused baggies had a red and black design. A219, A258, A286. A300-301. The countertop with the microwave was on the west wall. A221. Officer Houlihan also found several small chunks of cocaine, six smaller pieces and one larger, laying on the floor in close proximity to a razor blade on the carpet to the right of the counter holding the microwave, an area of the carpet which was kind of close to the wall. A231, A289-290, A302-303. Ms. Fisher was closer to the cocaine found on the floor than the packages. A134-135. She was approximately 10 feet from the cocaine on the counter. A135. Officer Houlihan did not find the pieces on the floor immediately but only after the drugs near the microwave had already been photographed and collected and he 12 continued to search. A289, A301. It was minutes later. A301. No other officers saw them although having been in and around that area. A302. Officer Padilla did not see them although he had already photographed the area before the search. A3 02. Officer Houlihan did not recall if those pieces were concealed from view in any way. A302. There were other items around the chunks on the floor, including a deck of cards, but he did not remember having to move anything to find them. A303. He testified that the pieces were not hidden in anything and he did not recall any pieces of furniture over the top of them. A303. Officer Padilla, who packaged the evidence, said the chunk of rock cocaine was found on the carpet in the living room a few feet from the microwave area. A231-233. He also testified a razor blade was found but it was neither collected nor photographed. A257. Sergeant Druzynski testified repeatedly that the small quantity of loose rock cocaine was on the floor in front of the kitchen cabinet with the packaged crack, unused bags and microwave until shown the photograph revealing that this cocaine was on the carpet. Al07, A109, Alll, A116. There was linoleum on the kitchen floor. A125. He said the loose cocaine was a couple of feet from the items on the countertop. A116. This police officer also used the plural once and singular once in mentioning that a razor blade was found on the floor. A107, A109. Police did not find any cutting agents in the apartment. A257. They did not find 13 any scales for weighing cocame either. A257. The parties stipulated to the introduction of a lab test report which indicated that the cocaine seized weighed 2.54 grams, i.e. more than 500 milligrams. A305-308. They also stipulated that the condition of the items found was altered by the lab in that the drugs were reduced to powder form for testing and weighing. A23 7-23 9. After the People rested, defense counsel moved for a trial order of dismissal arguing that only one of the witnesses placed his client in a position for which the drugfactory presumption could apply. A310, A312-313. The motion was denied. A320-321. Co-defendant Hope Fisher had already entered a guilty plea to attempted criminal possession of a controlled substance in the third degree, but had not yet been sentenced, when she was called as a defense witness in this trial. A352-353, A366, A565-584. She testified that the cocaine police found was hers alone. A328, A330. She bought it that day and stashed it in the kitchen cabinet. A328-329. She had not made up her mind whether she would use it all herself or sell some of it. A331. While Mr. Hogan was in the bathroom, she retrieved it from on some canned goods. A329. She was going to hide it somewhere else in case he looked for something to eat. A329. She was at the kitchen table with the drugs when police banged on the door startling her, sending the cocaine flying out ofher hands and everywhere. A329-331, 14 A335-336, A346-347. Although Mr. Hogan testified that he did not know there were drugs in the house and carne out of the bathroom to find the officers already in the apartment, the court found him guilty of the cocaine possession counts of the Indictment. A404-406, A475-476. He was sentenced to concurrent determinate terms of nine years incarceration with three years of post-release supervision on the criminal possession of a controlled substance in the third degree count and three years incarceration with two years of post-release supervision on the criminal possession of a controlled substance in the fifth degree count. A 7. Prior to the verdict, defense counsel renewed his motion for a trial order of dismissal. A436. He argued .that the drug factory presumption did not apply to the two counts of cocaine possession, the First and Second Counts, because Ms. Fisher had the drugs in her hands when police arrived and Mr. Hogan was in the bathroom. A436-437. The court again denied the motion. A438. In the charge conference Justice Valentino indicated that he would consider what he called the "room presumption" under Penal Law § 220.25 (2). A425. The People so requested. A426, A432-433. Mr. Hogan's attorney responded that he did not believe there was sufficient evidence to employ the room presumption charge. A429. He asserted that the evidence was against it. A429. He later argued there was 15 no evidence the drugs were in open view. A429-430. The court ruled that the charge was appropriate. A433. In his summation, defense counsel argued that since Mr. Hogan was in the bathroom, the presumption did not prove the case. A44 7. He noted that Sergeant Druzyinski testified contrary to everyone else. A447-449. He pointed out that the cocaine on the floor was not in open view because not easily seen. A449. He also argued that the court could not find Mr. Hogan guilty using the drug factory presumption because it could not find "there was a drug factory going on in this premises, six bags, personally using, not a drug factory. Loose rock. Razor )Jlades. Okay. Baggies. But are we talking a drug factory here sufficient to involve the room presumption? I don't believe so." A450. He also argued that since Ms. Fisher had the drugs in her hands, the exception to the presumption applied. A450-451. After the verdict Mr. Hogan's attorney made a written motion to set it aside which was submitted without argument. A551-556, A480-481, A484-485. He asserted that Mr. Hogan was denied due process because the presumption was applied. A551. He argued specifically that there was no evidence to support it and that the drugs were in Ms. Fisher's physical possession. A555. The court issued a written decision and order reiterating that the statutory presumption was properly applied because the drugs were in plain view and Mr. Hogan was in close proximity, 16 seen fleeing from the area where they were found. A557-558. In the appeal which followed, the Appellate Division, Fourth Department found that Mr. Hogan was seen "running from the kitchen/living room area not more than 15 feet from where the drugs and drug trafficking paraphernalia were found." A4. The Court then held there was sufficient proximity for the drug factory presumption to apply. A4. The Court also held that the verdict was not against the weight of the evidence. A4. The Fourth Department rejected the argument that counsel was ineffective for failing to notify Mr. Hogan ofhis right to testify before the grand jury. A4. The Court also held that counsel was not ineffective for, without more, failing to timely move to dismiss for lack of sufficient notice of the grand jury proceedings. A4-5. Chief Judge Lippman granted Mr. Hogan leave to appeal. A3. By order entered March 26, 2015, counsel was assigned on this appeal. A587. 17 POINT I: Mr. Hogan was deprived of the effective assistance of counsel when his assigned attorney failed to discuss his right to testify before the grand jury with him and then did not timely move to dismiss the Indictment for insufficient notice of the grand jury proceeding. Criminal Procedure Law Section 190.50 (5) affords a defendant the right to testify before the grand jury. Very recently this Court has reaffirmed that "[t]his right "'must be scrupulously protected'" (People v Smith, 87 NY2d 715, 721 [1996], quoting People v Corrigan, 80 NY2d 326, 332 [1992])" (People v Brumfield, 24 NY3d 1126, 1128 [2015]). Marcus Hogan was denied his right to testify when the People sent notice of the grand jury proceedings without sufficient time for him to exercise it, yet his attorney did not move in a timely fashion to dismiss the Indictment filed thereafter. Counsel also made the decision not to offer Mr. Hogan's testimony to the grand jury without ever discussing this right to testify with his client. This attorney's actions amounted to a failure to provide the effective assistance of counsel to which Mr. Hogan was entitled under the New York State Constitution so this Court should reverse his judgment of conviction. At 3:55 on the Friday afternoon before a three-day holiday weekend the prosecutor fax'd Mr. Hogan's attorney notice that the charges pending in Rochester City Court would be presented to the grand jury on Tuesday at 1:45 p.m .. A530-532, A541-543. That attorney did not see that notice until Tuesday. A527-528. By 3:56 18 p.m. on Friday when his fax machine received the notice, he was already out of the office for the long Memorial Day weekend. A527-528, A532. Counsel did not immediately go to the jail to visit his client on Tuesday once he saw the notice. Instead he waited to discuss the grand jury proceedings with Mr. Hogan on Wednesday, the day of the next City Court appearance. A46, A528. Counsel did, however, talk to an Assistant District Attorney on Tuesday, indicating that he would not be asking to have Mr. Hogan testify. A47-48. The grand jury heard the case and voted to indict on that day. A534. Marcus Hogan thus was not only denied the opportunity to choose himself whether to testify, he was deprived of any input into deciding if he should. A client has control over decisions fundamental to his case (People v Colville, 20 NY3d 20, 28 [2012]). Whether to exercise the right to testify in one's own defense at tria1 is a fundamental choice (id. ). The right to testify at grand jury should be seen in such a light as well. While this Court can, and should, hold that this right belongs to the defendant, it is not necessary to do so for reversal to be required in this case. This case requires only that the Court decide that an attorney must discuss the right to testify with a defendant before waiving it for that client. In People v Smith (87 NY2d 715,720 [1996]), this Court noted that a person's reputation can be effected merely by the filing of an indictment which is later 19 dismissed or even when the defendant is acquitted after trial. As this Court has recognized, the defendant's right to testify at grand jury must be protected because such testimony may alter the determination that might otherwise result from evidence presented exclusively by the People (id. at 720-721). In People v Evans (79 NY2d 407, 414 [1992]) the Court called the defendant's testimony "the singular incursion on the prosecutor's otherwise exclusive stronghold." A defendant's version of events provided to the grand jury can cut off a prosecution completely. All of the burdens that come with being prosecuted, including having to consider an attractive plea offer even if innocent, perhaps remaining in jail for a long period of time and the stress of a trial can be avoided by a no bill. A defendant's testimony can effect the level of the crime charged as well. A defendant may face a misdemeanor prosecution after his testimony rather than one for a felony. Therefore, whether to testify before the grand jury is an important decision which should be made only by the person facing the consequences if that decision does not produce the desired result. In one important respect this decision is like others this Court has held fundamental. In determining whether a decision is a fundamental or strategic one, this Court has considered which party has control of that decision ultimately (Colville, 20 NY 3d at 31 ). For example, whether lesser included offenses are submitted to the jury; whether a Judicial Hearing Officer presides; and whether a mistrial is granted are not 20 in the sole control of the defense and are not fUndamental (Colville, 20 NY3 d at 31- 32; People v Ferguson, 67 NY2d 383,390 [1986]). On the other hand, waiving trial by jury is in defense hands and is a fundamental decision (NY Const, art 1, § 2; CPL 260.10 and 320.10; People v Petrovich, 87 NY2d 961, 963 [1996]). The decision about whether to testify in grand jury is one. over which the defense has the last say. It is totally in the control of the defendant whether to do so. When the prosecutor prevents the exercise of that right, it will result in reversal (Brumfield, 24 NY3d at 1128). Just as a prosecutor cannot compel the use of an extreme emotional disturbance defense or a guilty plea, a prosecutor cannot force a defendant to testify before the grand jury in New York State. The decisions to rely upon an BED defense and whether to enter a guilty plea are reserved to the client, not the lawyer (Colville, 20 NY2d at 31-32; Petrovich, 87 NY2d at 963). This one should be treated the same way. Like submitting an BED charge to the jury, testimony before the grand jury may be "determinative of the verdict," here the grand jury's verdict (Petrovich, 87 NY2d at 963). A misunderstanding between counsel and client about this decision after discussing it does not amount to that attorney being ineffective (People v Helm, 51 NY2d 853, 855 [1980]). Mistakes happen which do not rise to the level of failing to provide meaningful representation. 21 Another case in which a mistake was at issue was People v Wiggins (89 NY2d 872, 873 [1996]). Defense counsel did not read the grand jury notice setting a three- hour window for Mr. Wiggins's testimony (People v Wiggins, 89 NY2d 872, Appellant's Briefp5, 6-7; Brief of Defendant-Respondent Bruce Wiggins p6, 11). Instead he relied upon prior practice of the District Attorney's Office, i.e. calling counsel in the afternoon to see if the defendant really intended to testify (id.). By the time Mr. Wiggins's attorney called the prosecutor, the case had been presented and voted (id. ). The action of the defense attorney in that case was certainly an error, but not a deliberate decision to divest a client of a significant right. In People v Simmons (1 0 NY3d 946 [2008]), this Court held that an attorney's failure to facilitate his client's testimony before the grand jury was not ineffectiveness. Again, the Court was reviewing an attorney's mistake. An attorney not qualified to handle felonies gave notice of his client's intent to testify but never ensured his client's presence and did not appear himself (id. at 94 7 -948). Nor did he secure counsel on the felony panel (id. ). The Court found the case indistinguishable from Wiggins. Those cases can be distinguished from a situation like this. Here an attorney consciously deprived a defendant of the right to testify in grand jury which the statute grants to him. 22 However, to the extent this Court finds this case also indistinguishable from Wiggins, the Court should reconsider the role a defendant has in this decision. As Judge Jones wrote in his dissent in People v Colville (20 NY3d at 35): "Because a defendant has the most to lose ina criminal proceeding (i.e., freedom), reason dictates that the defendant shall control his/her own destiny and have the ultimate authority regarding choices he/she makes (even if against advice of counsel)." The First Department has explicitly held rather recently that a defendant's right to testify before the grand jury is a defense attorney's right to assert, not the defendant's (People v Brown, 116 AD 568, 569 [1st Dept 2014], lv denied 24 NY3d 1001 ). The Court found that a trial judge was correct in determining that Mr. Brown's lawyer could prevent his client from testifying (id. ). The First Department concluded that this right was a tactical and strategic decision which a client must relinquish to his attorney's expertise. The Court referred to factors which such expertise might involve, including the possibility of a dismissal versus "providing the prosecutor with discovery and impeachment material, making damaging admissions and prematurely narrowing the scope of possible defenses" (id.). Even if this Court holds that it is the defendant who has the ultimate authority, any attorney would be expected to make recommendations to the client based upon those factors. The Third Department also arrived at the same conclusion because finding that 23 this Court's decision in Wiggins strongly indicated that a decision about a defendant testifying in the grand jury is a strategic and tactical one (People v Lasher (74 AD3d 1474, 1476 [3rd Dept 2010], lv denied 15 NY3d 894). In Lasher, however, there was nothing in the record to reveal whether the defendant had merely acquiesced in his attorney's advice about not testifying and so did in reality make the decision himself (id. at 1475). The Fourth Department found that an attorney's failure to effectuate his client's right to testify was not ineffective (People v Bibbes, 98 AD3d 1267, 1270 [4th Dept 2.012], rearg 100 AD3d 1473 [memorandum amended regarding another issue]; lv denied20 NY3d 931). That Court cited Lasher (id. at 1270). Yet inBibbes, not only was there no claim that the outcome of grand jury would have been different but the defendant had not even testified at trial (id.; see also People v James, 92 AD3d 1207, 1208 [4th Dept 2012], lv denied 19 NY3d 962). In Mr. Hogan's appeal, the Fourth Department held counsel was not ineffective for failing to "notify" him of the right to testify. A4. Of course, no notice would be necessary to a client if it is the lawyer's choice alone. There are significant implications in holding that an attorney controls this right. Refusing to allow a defendant to testify over that client's insistence to the contrary will cause a rift in the attorney-client relationship still in its infancy which will likely 24 be irreparable. Undoubtedly an indictment thereafter will be a foregone conclusion. There will have been no defense presented to the grand jury. The defendant will no longer trust this attorney's advice. Even if not at arraignment on the indictment, this acrimony will assuredly pose problems throughout the course of the representation. It may lead to a request to replace that attorney (see e.g. People v Cox, 19 Misc3d 1129 (A) [Sup Ct NY Cnty 2007]). Obviously there is no way to know how many attorneys have merely acceded to their clients' wishes and allowed them to testify before the grand jury over their objections heretofore. However, in the future after a holding from this Court that an attorney must make a decision based upon tactics and strategy, both trial and appellate courts will need to be sure such was the case every time a defendant testifies before the grand jury, particularly when that testimony will be used by the prosecution at trial. If an attorney did not have a legitimate strategy for allowing such testimony, reversal of a conviction would be required. Lawyers will have to stop acceding to their client's wishes about this testimony. On the other hand, if the decision is the client's, this issue will not present itself. That defendant will merely face the repercussions of a choice just as when choosing to reject a plea offer against counsel's advice. In addition, nothing would prevent a defendant from refusing to accept his 25 lawyer's final decision and asserting his right to proceed pro se. A prosecutor having received communication directly from a defendant invoking the right to testify at grand jury would require a court's intervention to relieve counsel. Of course, after any indictment this same defendant would need counsel again. Nothing will have been accomplished by forcing him or her into the grand jury alone. Another important consideration here is the early stage at which the right to testify must be invoked. A prosecutor may be presenting the charges to the grand jury to avoid a preliminary hearing, as in this case. In that event, the grand jury would likely be hearing proof .in less than 120 or 144 hours after an arrest (CPL 180.80). Even if counsel is standing with the accused at arraignment on a felony complaint, still not an everyday occurrence in every court in this State, the decision must be made in less than five or six days about whether the defendant testifies in grand jury. If there is a conflict requiring assignment of counsel other than the one present at arraignment, that decision may need to be made in one or two days. No discovery will have been provided by the District Attorney's.Office at that point. An attorney will not have had time to conduct an investigation or likely even obtain an order for investigative services in such a short time. An attorney's advice cannot truly be meaningful if the facts are unknown, yet the only person who does know the facts at that point is the defendant. 26 And it is that factor which is perhaps the most important one for not allowing. an attorney to control this decision without hearing from the client. This Court has referred to grand jury as a "critical accusatory stage" of the prosecution (Evans, 79 NY2d at 413-414). Certainly no attorney providing meaningful representation can eliminate the defendant's input from such a stage, as the attorney did here. In several cases, one as recent as 2008, the Third Department has expressed concern over a lawyer's failure to discuss the right to testify at grand jury with a client. In People v Weis (56 AD3d 900,901-902 [3rd Dept 2008], lv denied 12 NY3d 763), the Court said: "Although failing to make a motion to dismiss an indictment for an alleged violation of defendant's right to testify before the grand jury within five days of arraignment on the indictment is deemed a waiver of that right (see CPL 190.50 [5] [c]), the failure of counsel to consult with defendant concerning grand jury testimony could establish that the waiver was not knowingly made [citations omitted]." There was proof in Weis, however, that counsel had talked to his client about the grand jury proceedings and that they had together decided he would not testify (id. at 902). In People v Galleria, 264 AD2d 899, 899 [3rd Dept 1999], lv denied 94 NY2d 880), although mentioning the same possible lack of a knowing waiver, the Court found the record insufficient to establish that the defendant wanted to testify before the grand jury. In an appeal of a CPL 440.10 motion, People v Me Moore (203 27 AD2d 612, 614 [3rd Dept 1994 ]), the Court held that, "absent proof in the record that defendant consulted with his attorney," the waiver contained in CPL 190.50 (5) (c) did not appear knowingly made. Proof of such a consultation was present in the later appeal after a hearing (People v McMoore, 214 AD2d 893, 893 [3rd Dept 1995], lv denied 86 NY2d 796, cert denied sub nom Me Moore v New York, 516 US 1 096). One trial court said about the statutory right to testify: "In order for this right to have any force and effect, a defendant, at the very least, should be afforded the opportunity to consult with his attorney concerning this critical decision. The original counsel's failure to consult with his client and then unilaterally waiving his client's rights constitutes such a complete lack of meaningful representation as to be the equivalent of no representation at ~ll." (People v Corona, 149 Mise 2d 581, 583 (Sup Ct Bronx Cnty 1991). Attorneys in criminal cases have become much more client-centered (see "Our Mission and Story"; Bronx Defenders, Who We Are, www.bronxdefenders.org [indicating the Bronx Defenders provide client-centered criminal defense]). Attorneys practicing in that manner will clearly cede the decision to a client. Naturally any attorney might be convinced that what the client wants should prevail. This Court has recognized that principle in discussing a decision held to be one a lawyer is entitled to make, whether a lesser included offense should be submitted to a jury (Colville, 20 NY3d at 32). That is the reason why the client should be consulted before the right is lost. 28 In Wiggins the client had been advised about his right to testify before the grand jury. Mr. Hogan was not. Counsel here did say he believed that his client got the same letter about the grand jury proceedings at the jail at some point on Tuesday, the day of the presentment and vote. A38. But Mr. Hogan's attorney did not discuss that presentment and the possibility of testifying with his client before an indictment was voted. A46-48, A528. As a result, counsel did not know whether Mr. Hogan wanted to testify. The Rules ofProfessional Conduct provide in relevant part that" [a] lawyer may exercise professional judgment to waive or fail to assert a right or position of the client, ... , when doing so does not prejudice the rights of the client (Rules ofProfessional Conduct, 22 NYCRR 1200, Rule 1.2 [ e ]). An attorney would have no way of knowing if a client's rights are prejudiced without discussing that right with that individual, learning what the client would say and why it needed to be said. From counsel's comments in court in this case it is apparent that he saw no benefit and only harm from Mr. Hogan testifying. A48. However, he never heard why the man accused thought otherwise until it was too late. A48. In Simmons, this Court did remark that there was no issue of prejudice when counsel did not insure his client testified at the grand jury as requested (Simmons, 10 NY3d at 949). Here, Mr. Hogan was prejudiced. It is clear from this record that he would have testified if given the chance. He complained about being deprived of the 29 right to testify in the grand jury until his lawyer finally made a motion to dismiss for inadequate notice of the grand jury presentment. A37-38. His attorney indicated at a September court appearance that his client still wanted to testify in the grand jury then. A45. And, Mr. Hogan ultimately testified at trial. A390-423. It is submitted that Mr. Hogan's testimony at this early stage would have changed the vote in the grand jury. Unlike the trier of fact, the grand jurors would not have heard Ms. Fisher cross-examined extensively with a purportedly inconsistent plea colloquy, most of which she denied remembering. A352-380. The grand jurors would not have already heard a confidential informant in a Darden hearing. A548- 550. And the grand jurors would have seen how truly unlikely was the testimony of the one, and only one, of the police officers that Mr. Hogan was running empty- handed toward a bathroom away from the drugs. Nevertheless, the prejudice component of the New York State analysis for ineffective assistance "focuses on the fairness of the process as a whole, rather than its particular impact on the outcome of the case [People v Caban, 5 NY3d 143 (2005)] at 155-156" (People v Clermont, 22 NY3d 931, 937 [dissent] [2013]). The process which should be reviewed here is the grand jury. The fairness of that process, the grand jury proceedings, is undermined when the person with the right to testify has no voice in whether to do so. 30 Mr. Hogan's testimony before the grand jury could have been completely dispositive. This Court has reiterated that whether the error by an attorney involved a part of the proceeding which would have been dispositive is important in determining if counsel's inadequacies constituted ineffectiveness (People v Clermont, 22 NY3d 931, 934 [2013] [suppression motion; People v Turner, 5 NY3d 476, 481 [2005] [failure to assert statute of limitations]). In any event, Mr. Hogan's attorney not only failed to afford his client the opportunity to testify, he did not make on time a motion he finally did make. A failure to make a motion which has little or no chance of success does not deny a defendant the right to the effective assistance of counsel (People v Stultz, 2 NY3d 277, 287 [2004]). However, there was merit to a motion to dismiss this Indictment pursuant to Criminal Procedure Law § 190.5 0 ( 5) ( c) for not providing adequate notice of the grand jury presentment. The motion would have been granted if timely made. The fact that he made that motion eventually demonstrates that counsel himself believed this motion had merit. There can be no legitimate strategic reason to make a meritorious motion but only when it is too late. Criminal Procedure Law§ 190. 50 (5) (a) requires the People to serve notice of a prospective grand jury proceeding when a felony complaint remains undisposed of. Such notice must "accord the defendant a reasonable time to exercise his right to 31 appear as a witness therein" (CPL 190.50 [5] [a]). An indictment filed without that timely notice must be dismissed (CPL 190.50 [5] [c]). It has been said that in this context " 'the concept of reasonableness is not a stagnant one and must be applied to the particular facts of any given case.' [citations omitted]" (People v Jordan, 153 AD2d 263, 267 [2nd Dept 1990] lv denied 75 NY2d ( 967). The grand jury notice in this case was transmitted by facsimile on a Friday afternoon at 3:55. A541-543. Defense counsel did not receive it until Tuesday because it was sent just before the three-day Memorial Day weekend. That was not the reasonable time to exercise the right to testify required by Criminal Procedure Law Section 190.50 (5) (a). This notice late on a Friday afternoon of presentment on Tuesday,was not like that in People v Henderson (74 AD3d 1567, 1568-1569 [3rd Dept 2010], modified74 AD 3d 1567). In Henderson, there was no three-day holiday weekend and notice was also provided in open court (id. at 1568). In People v Moore (249 AD2d 575 [3rd Dept 1998], lv denied 92 NY2d 857) and People v Pugh (207 AD2d 503 [2nd Dept 1994]), there were no three-day weekends involved either. In People v Degnan (246 AD2d 819 [3rd Dept 1998]), the Court found one day's notice insufficient. The notice here was really even less since counsel received the notice on the day the case was being both presented and voted. As in Degnan, the 32 People in Mr. Hogan's case only insisted upon such short notice to avoid the preliminary hearing which was scheduled for the day after the grand jury proceedings (id. at 820). · A motion to dismiss this Indictment pursuant to Criminal Procedure Law Se~tions 210.20 (1) (c) and 210.35 (4) for the People's failure to provide Mr. Hogan with adequate notice of his right to testify in the grand jury would therefore have been granted if made when required. That motion must be made within five days of arraignment or the deprivation of this right is waived (CPL 190.50 [5] [ c ]). Defense counsel here certainly had sufficient time to prepare the motion within five days after arraignment. The case was voted upon by the grand jury by June 1, 2005 but Mr. Hogan was not arraigned until June 21, 2005. A22. Counsel therefore had 20 days even prior to arraignment to draft the motion. There was no excuse for counsel's failure to make the motion in a timely fashion when his client wanted to testify before the grand jury. Even if the motion had been denied, Mr. Hogan would have been left with a preserved issue for argument on appeal. There would be no down-side to making such a motion. At the very worst, if Mr. Hogan did not testify later, a subsequent grand jury proceeding would result in additional Rosario material available at trial. The Standards and Criteria for the Provision of Mandated Representation in Cases Involving a Conflict of Interest, 33 which now apply to all trial level representation, direct lawyers to "[z]ealously advocate ... for dismissal of proceedings whenever warranted" and to "challenge inadequacies in documents and proceedings unless doing so would harm the client" (Office of Indigent Legal Services, www.ils.ny.gov/: Standards and Performance Criteria: Standards and Criteria for the Provision of Mandated Representation in Cases Involving a Conflict of Interest, ~5 [d], [c]). Those rules would seem to require such a motion now. The Fourth Department held that Mr. Hogan was not denied the effective assistance of counsel when not notified about his right to testify before the grand jury. A4. The Court separately decided that the same was true for counsel's failure to move to dismiss because notice of the presentment was inadequate. The Court specifically referred to that failing as being "without more." A5. The two errors should be considered in combination as well as individually. Not making the motion to dismiss in a timely fashion would be inconsequential if counsel had discussed the prospect of his testifying with Mr. Hogan and he did not intend to testify. It was not only committing each error but also both together which prejudiced Mr. Hogan. Had the motion been made, there would have been a remedy for counsel's first mistake. Since counsel committed each error and both together in this case, this Court should therefore hold that Mr. Hogan was deprived of the right to the effective 34 assistance of counsel guaranteed by the New York State Constitution very early in this prosecution. (NYS Const, art 1, § 6). The Court should reverse the judgment of conviction, dismiss the Indictment and remit to Rochester City Court for a preliminary hearing and grand jury presentment with adequate notice of any subsequent grand jury action. 35 POINT II: The drug factory presumption should not have been employed to convict Mr. Hogan of possessing cocaine because none of the qualifying circumstances were present While the People tried the case against Marcus Hogan usmg both a constructive possession theory without and with the drug factory presumption, the court found insufficient evidence to convict him of possessing cocaine without the presumption. TM 454. The presumption should not have been considered however, because there was no evidence drugs in open view were possessed under any of the circumstances for which the drug factory presumption applies. Evidence that drugs are merely possessed with intent to sell is insufficient to trigger the presumption. This Court should therefore reverse Mr. Hogan's judgment of conviction and dismiss the Indictment. With two exceptions, the drug factory presumption provides that: "[t]he presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine 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." (Penal Law§ 220.25 [2].) The statutory language is clear. There are only four circumstances for which applying the presumption is permissible. In the words of the State Commission of 36 Investigation, those are "carefully defined circumstances" (Mem of St Commn of Investigation, Bill Jacket, L 1971, ch 1044 at 3). By its very terms, the statute does not apply when drugs are already prepared for sale. Just as inthe controlled substance possession offenses (Penal Law§ 220.06 [1]; 220.09 [13]; 220.16 [1], [2], [3], [4], [5], [6], [7]), the Legislature could have provided that the drug factory presumption applies "under circumstances evincing an intent to sell," but they did not. This Court has indicated that "when the statutory 'language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words' used" (People v Finnegan, 85 NY2d 53, 58 [1995] [citations omitted]; see also People v Williams, 19 NY3d 100, 103 [2012]). In this situation, that means more must be present than merely evidence of intent to sell in order to permit use of the statutory presumption. There is a distinction between finding drugs already packaged and ready for sale and the enumerated circumstances in the presumption. Evidence of the first circumstance, showing an intent that drugs are to be mixed, would be finding a cutting agent present with the drugs, like inositol or baking soda for example. Evidence of the second, reflecting an intent that the drugs are to be compounded, would perhaps be finding heroin and benadryl or hydrocodone; cocaine and marijuana; or cocaine and heroin in a way which indicates they were being combined. 37 The presence of pill grinders or screens could indicate an intent to mix or compound. Evidence of the third circumstance, an intent to package, could be finding a digital scale and a quantity of drugs too large to be sold to typical users along with unused baggies. Evidence ofthe fourth circumstance, an intent to otherwise prepare drugs for sale, would be finding test tubes in which cocaine could be cooked to make crack. Making a presumption available only when drugs are in the "factory" stage as evidenced by one of the four circumstances identified is justified. A person who is present when drugs are being packaged or prepared for sale is involved in the drug dealing business. People not connected to the business would not be present because not trusted. It is they who might give police the location of the factory, attempt to rip it off or otherwise create a risk to the dealers. It is therefore appropriate to place upon the person present at the drug factory stage, a person almost certainly in the drug business, a need to present an alternative to the presumption. That person should be expected to convince the trier-of-fact that the presumption has been rebutted. However, a person in a room where drugs are ready for sale could well be a customer. It could not be safely assumed that all the drugs present belonged to that customer. As this Court has recognized, the purpose of the law was to identify those "involved in a drug business" (People v Kims, 24 NY3d 422, 432-433 [2014]). It would be unreasonable and thus inappropriate to put a need to rebut the presumption 38 that all the drugs were his or hers on an individual who was merely buying drugs when drugs were found in open view. A presumption is valid because "the probabilities based on experience and proof justify them" (Kims, 24 NY3d at 435). Presuming potential customers are in possession of all the drugs present contradicts what common experience teaches. Nonetheless, one court has specifically held to the contrary. Although the issue was not preserved for review, in People v Staley (123 AD2d 407, 408 [2nd Dept 1986], lv denied 68 NY2d 1004), the Second Department rejected an argument that the drug factory presumption was inappropriately charged when the defendant was found in a room with a substantial number of $10 bags of cocaine. The Court said, "[a]lthough the drugs were not in a state of being processed or packaged when discovered, we do not read the presumption so narrowly so that it would be inapplicable to narcotics found in a state ofpreparation for sale to users" (id.). This language is wrong but the decision was likely right for other reasons. The circumstances in Staley were unusual in that drugs were being sold on the first floor but packaged and stored on the third floor (Staley, 123 AD2d 407, Respondent's Briefp16). There was an air shaft connecting the two floors through which people fled to the third floor when police entered with a warrant on the first (Respondent's Briefp3, 16). On the third floor where Mr. Staley was found, police 39 also located larger bags of cocaine ready for packaging and a scale in a closet (Respondent's Brief p16). There were thus circumstances evincing an intent to package some drugs at_ some point. This case has been cited by no other Department although the Second Department later cited it as authority in People v James (266 AD2d 236 [2nd Dept 1999]). In the James case, police found loose foil on the bed in a motel room along with the already packaged foils as well as a small amount of powder and a razor blade with residue in the bathroom (People v James, 266 AD2d 236, Brief for Respondent p4, 16). The People argued there was an intent to package and the Court so found (James, 266 AD2d at 236; Brief for Respondent p16). The broad language in Staley was therefore not important to that decision. It is facts like in People v Kims (24 NY3d 422 [2014]) which are precisely those for which this presumption was designed. In the kitchen near several ounces of cocaine were "scales, a heat sealer, a blender covered in residue, a chemical agent called Inositol Powder used in illegal drug production, glassine envelopes and cookware covered in a white powder residue" (Kims, 24 NY3d at 427). There wa~ clear evidence that there was a drug factory present. Only Mr. Kim's presence was m1ssmg. In this case police officers testified that they found cocaine in an apartment in 40 which Co-defendant Fisher lived. This apartment was not a room used only for drug sale purposes. It was her residence. The photographs show dishes in a drainer at the sink, food in a kitchen cabinet, photographs on the living room wall and even a bathroom fully stocked with personal care products and a wig. A559, A561, A563. Sergeant Druzynski acknowledged that this was a place where someone lived. A 13 8. There were six packages of crack in open view in one bag near 50 unused baggies in another bag near the microwave in the kitchen area. The designs on the unused bags and on the bags containing the cocaine were different. There is nothing about that situation which would evince an intent to mix, compound, package or prepare drugs for sale. The drugs appeared to be ready for sale or for an individual's personal use. Since the unused bags were different, it would be pure speculation to assume the drugs had just been packaged at this location. While finding evidence like this might show an intent to sell, it should not permit use of the drug factory presumption. Thus the only conceivable evidence to justify relying upon the presumption here was the finding of small, loose rocks of crack on the carpet and a razor blade nearby. These pieces were not "in open view." Officer Houlihan is the person who found them on the carpet in an "area that was kind of close to the wall." A302. He did not see them immediately, however. And, he was not the only one with an 41 opportunity to see them, yet he was the only one who did see them. Other officers had been in and around that area. A30 1-302. Officer Padilla had even photographed the area before any search began. A301. Officer Houlihan found them only after the drugs near the microwave had already been photographed and collected and he continued to search. A289, A301; A222. It was minutes later before they were located. A3 0 1. On redirect examination, when asked, "[ o ]n the topic of the rock found on the floor, do you recall whether or not that object was concealed in any way from view," Officer Houlihan said, "Idon'trecalled [sic]." A302. He remembered only that they were not hidden in anything. A303. He did not remember having to move anything to find them. A302-303. Nor did he recall any pieces of furniture over the top of them but there were other items around the pieces on the floor, including a deck of cards. A303. Officer Houlihan's testimony thus did not prove beyond a reasonable doubt that these drugs were in open view in order to permit reliance upon the presumption for them (see People v Galindo, 23 NY3d 719, 723 [2014])} In any event, the unused baggies were not near the loose crack as if it was being packaged. The bags were in the kitchen area near the microwave inside a larger 2 A jury would have heard that the presumption can be used only when the People have proven beyond a reasonable that the drugs were in open view (CJI2d[NY] Penal Law§ 220.25 [2]). 42 bag while the loose pieces were on the carpet. Police took no photograph of any razor blade close to the drugs, although taking a photo of the pieces, and did not collect any razor blade as evidence. A257. Thus there was insufficient proof that these pieces were in open view under circumstances evincing an intent to mix, compound, package or otherwise prepare for sale rather than an intent to use. Therefore, the presumption could not be used for these pieces for this reason as well. Defense counsel did object to the court's use of the drug factory presumption. In his trial order of dismissal motions, he addressed the lack of reliable proof that Mr. Hogan was in close proximity and the exception established by Ms Fisher's testimony that she had the drugs in her hand when police arrived. A31 0-313, A436-437. In the charge conference initially Mr. Hogan's attorney asked that the People be compelled to elect either to rely upon the presumption or a constructive possession theory without it. A425-426. Later he asserted that there was insufficient evidence "to order the room presumption charge," that the evidence was entirely against it. A429. He added that there was no evidence the drugs were in open view. A430. When asked by the court, he noted his opposition to the "room presumption charge." A430. However, the court ruled that it could consider the presumption while deliberating. A433. And rather unusually, the summations in this bench trial were treated as continuations ofthe legal argument. Prior to those summations defense counsel noted 43 that he needed to renew his trial order of dismissal motion for preservation purposes. A436. He said, "And if I could do that as part of my closing! [sic] would ask to be allowed to do that." A436. The court said, "Either way you want to do that. So, are you renewing your motion for a trial order of dismissal. [sic]" A436. After answering affirmatively and making a cursory argument focusing on the testimony after the previous motion, the motion was denied. A436-437. Nonetheless, in light of the court's consent, counsel's arguments in summation should be seen as legal arguments preserving this issue. In wrapping up his summation, he noted that he was concluding his "argument as factual and legal in nature." A452. The prosecutor even cited case law during his summation. A461, A463 and A464 (reconstructive possession; A465, A467 and A468 (re presumption). In particular defense counsel argued that the court could not find Mr. Hogan guilty using the drug factory presumption in saying: "I would also suggest to the court that the court needs to find there was a drug factory going on in this premises, six bags, personally using, not a drug factory. Loose rock. Razor blades. Okay. Baggies. But are we talking a drug factory here sufficient to invoke the room presumption? I don't believe so." A449-450. He had already argued that the cocaine on the floor was not in open view. A449. In rendering a verdict, the court determined there was insufficient proof of constructive possession without due consideration ofPenal Law§ 220.25 (2). A4 75- 44 4 7 6. Counsel moved to set aside that verdict alleging that Mr. Hogan was denied due process because the presumption had been applied. A5 51. He argued specifically that there was no evidence to support it and that the drugs were in Ms. Fisher's physical possession. A555. The court issued a written decision and order holding that the statutory presumption was properly applied because the drugs were in plain view and Mr. Hogan was in close proximity, seen fleeing from the area where they were found. A557-558. The court was in error in that conclusion. The presumption should not have been relied upon to convict Mr. Hogan because there was insufficient proof to establish the existence of any of the four underlying circumstances required for its application to the cocaine in open view. Since the trier-of-fact indicated that the drug factory presumption alone formed the basis for the guilty verdict, there can be no argument that using the presumption was a harmless error. The judgment of conviction should be reversed and the Indictment dismissed. This is the only appropriate remedy because the court found no proof beyond a reasonable doubt of possession under a typical constructive possession theory without the presumption. Mr. Hogan cannot be retried for these crimes under that theory so there is no longer any theory through which the People can attempt to prove Mr. Hogan guilty at a new trial. 45 CONCLUSION This Court should reverse Mr. Hogan's judgment of conviction and dismiss the Indictment on the grounds that the drug factory presumption which formed the basis for the conviction was inappropriately applied. The proof of one of the four circumstances under which the presumption may be employed was insufficient. In the alternative, the Court should reverse the judgment of conviction because Mr. Hogan was denied his right to the effective assistance of counsel. He was deprived of the right to testify before the grand jury when his attorney did not discuss that right with him and then failed to timely move to dismiss the Indictment so that he could testify. The case should be remitted to Rochester City Court for further proceedings. Dated: April27, 2015 46 ·· Shirley . Gorman Atto ey for Appellant PO Box 629, 19 Market St. Brockport, NY 14420 (585}637-5645