People v. Hogan
| Decision Date | 18 February 2016 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Marcus D. HOGAN, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Shirley A. Gorman, Brockport, for appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), for respondent.
STEIN
, J.
Under the circumstances of this case, we conclude that the drug factory presumption of Penal Law § 220.25
was properly considered by the factfinder. In addition, defendant argues that the decision regarding whether to testify before the grand jury is fundamental and, therefore, reserved to defendants, rather than a matter of strategy that rests with defense counsel. We reject that argument and hold that the decision is a strategic one, requiring the expert judgment of counsel. Thus, we adhere to our prior decisions establishing that the refusal to timely facilitate defendant's appearance before the grand jury does not, per se, amount to ineffective assistance of counsel.
Defendant was arrested on felony drug possession charges after police executing a search warrant at his former girlfriend's
apartment observed him running to the bathroom from the kitchen, where packaged and loose cocaine, baggies, and a razor blade were found in open view directly across from the entrance door. At approximately 4:00 p.m. on the Friday before a long holiday weekend, the People sent notice to defense counsel, by fax, indicating that the case would be presented to a grand jury on the next business day, a Tuesday, at 1:45 p.m. Defense counsel had already left the office and did not receive the notice until Tuesday morning. He then contacted the district attorney's office and indicated that he would not have defendant testify because he “didn't see the benefit to it, only the harm.” It is undisputed that counsel did not speak with defendant about testifying before the grand jury, which ultimately voted to indict defendant, charging him with, among other things, criminal possession of a controlled substance in the third and fifth degrees. Defendant later moved to dismiss the indictment on the ground that he was denied an opportunity to testify before the grand jury due to insufficient notice. Supreme Court denied the motion as untimely.
At the ensuing nonjury trial, police officers testified that, upon entering the apartment, they found six “dime bags” of packaged crack cocaine and 50 unused baggies in plain view on the kitchen counter. There was also testimony that the baggies were of the sort that “are commonly used for the unlawful packaging, sale and distribution of illegal narcotics such as crack cocaine”—i.e., sale-related items associated with the drug trade. They also found loose cocaine and a razor blade on the floor, a few feet in front of the counter. One of the officers testified that defendant was initially observed “a couple of feet” away from the cocaine. Defendant's former girlfriend, who pleaded guilty to attempted criminal possession of a controlled substance in the third degree, testified that she had purchased the cocaine and was “in the process of moving it” when the police arrived, but it “flew everywhere” out of her hands when she heard the police banging on the door. She admitted that the cocaine—including the loose cocaine that had been in her hands—and the unused baggies were in plain view when the police entered. She further testified that she was not sure what she was going to do with the drugs, but acknowledged that she would “[p]robably sell some.”
Defendant was convicted of criminal possession of a controlled substance in the third and fifth degrees. In handing down its verdict, the court indicated that there was insufficient
proof under a constructive possession theory without the presumption set forth in Penal Law § 220.25(2)
, commonly known as the drug factory presumption. Defendant was sentenced, as a second felony offender, to an aggregate term of nine years in prison, to be followed by three years of post-release supervision. His subsequent motion to set aside the verdict was denied.
Upon defendant's appeal, the Appellate Division unanimously affirmed, rejecting his arguments that the drug factory presumption did not apply and that he was denied the effective assistance of counsel (118 A.D.3d 1263, 1263–1264, 986 N.Y.S.2d 907 [4th Dept.2014]
). A Judge of this Court granted defendant leave to appeal (24 N.Y.3d 1219, 4 N.Y.S.3d 608, 28 N.E.3d 44 [2015] ).
Initially, we reject defendant's argument that the drug factory presumption contained in Penal Law § 220.25(2)
was inapplicable because, he maintains, there was evidence only of possession with intent to sell, but no evidence of intent to package or otherwise prepare drugs for sale. As relevant here, section 220.25(2) provides:
“The presence of a narcotic drug ... in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found” (emphasis added).
This Court recently addressed this provision in People v. Kims, explaining that the statute allows the court to charge the fact-finder “with a permissible presumption, under which the [fact-finder] may assume the requisite criminal possession simply because the defendant, while not in actual physical possession, is within a proximate degree of closeness to drugs found in plain view, under circumstances that evince the existence of a drug sale operation” 24 N.Y.3d 422, 432, 999 N.Y.S.2d 337, 24 N.E.3d 573 (2014)
.
[emphasis added] ).
In accordance with the statutory purpose—and as is evident from the language of the statute—“a specific intent on the part of the defendant to ‘unlawfully mix, compound, package or otherwise prepare for sale’ a controlled substance [need not] be shown[;] [a]ll that is required is that the ‘circumstances evinc[e]’ such an intent” (People v. Nelson, 147 A.D.2d 774, 776, 537 N.Y.S.2d 995 [3d Dept.1989]
, lv. denied 74 N.Y.2d 794, 545 N.Y.S.2d 556, 544 N.E.2d 234 [1989] [citation omitted], quoting Penal Law § 220.25[2] ).
This Court has found circumstances present evincing the existence of a drug factory for purposes of the presumption where cocaine was found in a bathrobe that was under a pile of clothes, along with, “in plain view, ... recognized adulterants and drug paraphernalia” (People v. Tirado, 47 A.D.2d 193, 195–196, 366 N.Y.S.2d 140 [1st Dept.1975]
, affd. on op. below 38 N.Y.2d 955, 384 N.Y.S.2d 151, 348 N.E.2d 608 [1976] ). Similarly, we concluded that the presumption was properly applied where an “apartment contain[ed] a large cache of drugs, money and weapons in plain view” (People v. Bundy, 90 N.Y.2d 918, 920, 663 N.Y.S.2d 837, 686 N.E.2d 496 [1997] ), as well as where police found a small residue of cocaine on a dish, grains of rice on the floor, a plastic bag containing over one-half ounce of cocaine in a closed drawer, and 10 ounces of cocaine hidden in a bag of rice in a refrigerator (see
People v. Tejeda, 73 N.Y.2d 958, 960, 540 N.Y.S.2d 985, 538 N.E.2d 337 [1989] ). In contrast, there was insufficient evidence to charge the presumption where, upon entering an apartment in which an undercover officer had recently made a controlled buy, police found only “a tinfoil packet of cocaine on the floor in the four-to-five-inch space between a couch and the wall,” as well as a large amount of cash (People v. Martinez, 83 N.Y.2d 26, 30, 34 n. 3, 607 N.Y.S.2d 610, 628 N.E.2d 1320 [1993], cert. denied 511 U.S. 1137, 114 S.Ct. 2153, 128 L.Ed.2d 880 [1994] ).
Under the circumstances here, the court properly granted the People's request that it consider the presumption. Defendant's former girlfriend admitted that the bagged crack, loose cocaine and baggies were in plain view, and that she was in
the process of “moving” the cocaine that she was “[p]robably” going to sell.1 The police further testified that defendant was found in close proximity to the cocaine and that the drugs, baggies and razor blade were in open view. Despite the fact that the loose cocaine was in the carpet—where it fell from the former girlfriend's hands when she was startled by the police battering ram—it was in the open and not concealed by any furniture or other object (cf. Martinez, 83 N.Y.2d at 36–37, 607 N.Y.S.2d 610, 628 N.E.2d 1320
). While there was not a vast quantity of cocaine found, the evidence presented at trial supported an inference of more than mere intent to use or sell. Specifically, the evidence of packaged and loose drugs, paraphernalia and a razor blade in plain view was sufficient to establish that drugs were being “package[d] or otherwise prepare[d] for sale” in the apartment, permitting the conclusion that defendant, who was in close proximity to the drugs, knowingly possessed them (Penal Law § 220.25[2] ; see
People v. Elhadi, 304 A.D.2d 982, 982–984, 759 N.Y.S.2d 781 [3d Dept.2003], lv. denied 100 N.Y.2d 580, 764 N.Y.S.2d...
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