People v. Kims

• Citation: 24 N.Y.3d 422,24 N.E.3d 573,999 N.Y.S.2d 337,2014 N.Y. Slip Op. 07196
• Parties: The PEOPLE of the State of New York, Appellant–Respondent, v. Stanley R. KIMS, II, Respondent–Appellant.
• Decision Date: 23 October 2014
• Court: New York Court of Appeals

24 N.Y.3d 422

24 N.E.3d 573

999 N.Y.S.2d 337

2014 N.Y. Slip Op. 07196

The PEOPLE of the State of New York, Appellant–Respondent

v.Stanley R. KIMS, II, Respondent–Appellant.

Court of Appeals of New York.

Oct. 23, 2014.

Cindy F. Intschert, District Attorney, Watertown (Harmony A. Healy of counsel), and Karen F. McGee and Hannah E.C. Moore, New York Prosecutors Training Institute, Albany, for appellant-respondent.

Davison Law Office, PLLC, Canandaigua (Mark C. Davison of counsel), for respondent-appellant.

OPINION OF THE COURT

RIVERA, J.

On these cross appeals arising from defendant's convictions for various drug-related crimes, we conclude that defendant was not within “close proximity” to the drugs found in his apartment once he exited the premises and entered his car, where no evidence suggests that he was in immediate flight from the premises in an attempt to escape arrest. Therefore, the trial court erroneously charged the jury on defendant's knowing criminal possession of drugs under the “drug factory” presumption of Penal Law § 220.25(2). We further agree with the Appellate Division that, under the circumstances of this case, and in accordance with our decision in People v. Martinez, 83 N.Y.2d 26, 29, 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) such error requires reversal of defendant's convictions for criminal possession of a controlled substance in the first and third degrees, and a new trial ordered on these counts of the indictment. Moreover, upon finding no basis to reverse defendant's convictions for criminal possession of marihuana in the second degree and two counts of criminally using drug paraphernalia in the second degree, we affirm the Appellate Division.

I.

Soon after defendant Stanley R. Kims, II was released on parole for a conviction unrelated to this appeal, Detective James McNitt, a member of the Metro Jefferson Drug Task Force (Task Force), received information from an informant that defendant was operating a drug “stash house”¹ on LeRay Street in Watertown, New York. McNitt subsequently confirmed that defendant was leasing the ground floor apartment at the LeRay Street address and reported this to Patrick Glennon, defendant's parole officer.

Glennon decided to visit the LeRay Street residence that same day because defendant had previously reported to parole authorities that he was living with his family at a different Watertown address. Glennon told McNitt that he and several officers were going to LeRay Street to conduct a “house check” and asked McNitt to “stay in the area in case they needed any assistance.” McNitt agreed. Unbeknownst to Glennon, McNitt took along several other members of the Task Force and placed the LeRay Street residence under surveillance while the parole officers conducted their investigation.

When the parole officers arrived they found defendant's vehicle parked in the driveway directly in front of the LeRay Street residence. They parked outside and after about an hour Glennon and another parole officer saw defendant and his cousin, Robert Sawyer, exit through the front door of the house and walk towards the vehicle. Events then moved quickly. Glennon called out to defendant. At some point defendant shifted his vehicle into reverse, but was unable to exit because by then the parole officers had parked their car behind him. Glennon observed defendant reach into the vehicle's console area, located between the driver and front passenger seats. The officers then drew their guns, and yelled to defendant and Sawyer to put their hands up and exit the vehicle. The officers surrounded defendant and Sawyer, and were joined by two other parole officers who had been parked near the back of the residence.

After repeated demands by the officers to exit the vehicle, Sawyer finally unlocked the door, and the parole officers handcuffed, frisked and searched defendant and Sawyer. The officers found packages of cocaine on Sawyer and on the ground next to the passenger side door where Sawyer and defendant had been removed from the car. A subsequent search of the vehicle pursuant to a warrant led to the discovery of more cocaine in the console area.

Within minutes of defendant's arrest, McNitt and other members of the Task Force joined Glennon and the parole officers at the front of the residence. As people in the neighborhood began to gather around, defendant repeatedly yelled out to the crowd “Call Chino.” McNitt asked defendant if there was anyone in the residence, but defendant looked away and failed to answer. Concerned about potential danger to the officers and the destruction of evidence, McNitt and several of the other officers conducted a protective sweep of the residence, which they entered using defendant's key. Inside, they found one person, Jeffrey Fineout, who was asleep on the living room couch. In response to their questions Fineout told the officers that the residence belonged to defendant.

As they continued the sweep, the officers walked towards the back of the apartment where they observed on the kitchen counter a clear bowl filled with what they subsequently confirmed were several ounces of cocaine. They also saw 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.

After the officers obtained and executed a search warrant for the apartment, they found two large trash bags containing approximately 3 1/2 pounds of marihuana in the bedroom closet. In that same bedroom they found a copy of the signed lease with defendant's signature, a National Grid electric bill for the LeRay address in defendant's name, $24,000 in cash in a safe, and another $2,100 on a night stand. In the kitchen they found 6.8 ounces of cocaine in the cupboards and 3 ounces on the counter in open view.

Defendant was indicted on several drug-possession related counts. Prior to trial, he sought to suppress all of the drugs and items found in the apartment for lack of probable cause. The court denied suppression finding the protective sweep to be a valid warrantless search. Defendant also sought to prevent submission of certain evidence of prior bad acts. After a Sandoval/ Molineux hearing the court held that the People could submit proof of prior drug sales as probative of intent to sell, knowing, intentional and constructive possession, and the existence of a narcotics business operated by defendant. The court also held that the People could seek to admit first-hand knowledge testimony that defendant was a high-ranking member, or participant in a drug organization, as well as evidence that he was a member of a gang that operated a drug distribution business. However, the court prohibited hearsay testimony from the officers and the People's witnesses about defendant's reputed status as a gang member or drug dealer, and specifically barred the People from eliciting the words “gang” or “Crip” from law enforcement witnesses. Nevertheless, this prohibition was subject to the People establishing a proper foundation for a hearsay exception or exclusion and, if admitted, further subject to a limiting instruction to the jury.

At trial, the People presented physical evidence and testimony establishing defendant's involvement in the drug sale operation at the LeRay Street residence. Parole officers and Task Force members testified as to defendant's arrest, the protective sweep and the seizure of the drugs and drug paraphernalia found in the apartment and vehicle, contraband which was admitted into evidence. The People established that a few months prior to his arrest defendant had commenced work at a fast food establishment. The owner of the building testified that defendant signed a month-to-month lease in February, that he paid $650 monthly rent, and that in March, while she was considering selling the building for approximately $68,000, defendant expressed interest in purchasing the building, under an arrangement wherein he would supply a 30–50% deposit.

Three witnesses, including Sawyer, testified as to prior drug sales and defendant's alleged gang affiliation. Sawyer testified that on the day of the arrest, he went to the apartment to buy drugs from defendant. While inside the apartment, he gave defendant $50, sat on a couch in the living room and watched defendant enter the kitchen area, from which defendant emerged 15–20 minutes later, and handed Sawyer the cocaine. Sawyer also testified that defendant told him he was a member of a gang known as the Crips, and that Sawyer had seen defendant wear the Crips gang bandana.

The occupant of the upstairs apartment testified that on at least three occasions he had purchased drugs inside defendant's apartment, from Fineout, and that he had witnessed defendant coming and going from the residence. The upstairs occupant had also asked defendant about purchasing cocaine to establish his own selling business.

Another witness testified that he had known defendant for 15 years, and had purchased drugs from him in the past. He further testified that while he and defendant were incarcerated together, they talked about defendant's drug organization. He too stated that defendant told him he was a member of the Crips gang.

As relevant to this appeal, the judge charged the jury under two theories of criminal possession based on the defendant's lack of actual physical possession of the drugs. In accordance with Penal Law § 220.25(2), for the criminal possession of a controlled substance in the first and third degree counts only, the court instructed the jurors that

“the presence of a narcotic drug or preparation in open view in a room under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare that substance for sale is presumptive evidence of knowing possession of that substance by each and every person in close proximity to it at the time the substance

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