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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 155
The People &c.,
        Appellant-Respondent,
        v.
Stanley R. Kims, II,
        Respondent-Appellant.




          Harmony A. Healy, for appellant-respondent.
          Mark C. Davison, for respondent-appellant.




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,


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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 decisions in People v Martinez (83 NY2d 26,
29 [1993]) such error requires reversal on 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



     1
       At trial, McNitt defined a "stash house" as a place to
keep drugs and money, and to package drugs for sale.

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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 both
defendant and Sawyer 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


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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.


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                                - 5 -                          No. 155
            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


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                                - 6 -                        No. 155
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


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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


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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 found by each and every person
          in close proximity to it at the time the
          substance was found.
                    "What that means is if the people
          have proven beyond a reasonable doubt that
          the cocaine was in open view in a room and
          that the circumstances were such as to evince
          an intent, that is a conscious objective or
          purpose, to unlawfully mix, compound, package
          or otherwise prepare the cocaine for sale,
          then you may, but are not required to, infer
          from that fact that each and every person in
          close proximity to the cocaine at the time it
          was found was in knowing possession of it.
          Whether or not to draw that inference is for
          you to decide entirely on your evaluation of
          the evidence."

          The judge also instructed the jury on constructive
possession for all of the charges, informing the jurors that,
          "a person has tangible property in his or her
          constructive possession when that person
          exercises a level of control over the area in
          which the property is found or over the
          person from whom the property is seized
          sufficient to give him or her the ability to
          use or dispose of the property."

          With respect to the Molineux evidence, the judge gave a


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limiting instruction on the defendant's prior bad acts and
alleged gang affiliation, informing the jurors that the evidence
was not offered to establish a propensity or predisposition to
commit the crimes charged, but rather as evidence of motive or
intent, or to show the absence of a mistake, or to show a common
plan or scheme, or for the purpose of identifying the defendant.
The court further informed the jurors that if they found the
evidence believable, they were permitted to consider it for this
limited purpose.2
            The jury convicted defendant on all counts of the
indictment, finding him guilty of criminal possession of a
controlled substance in the first and third degrees (Penal Law §§



     2
         The trial court's charge to the jury stated,
                 "There is evidence in this case on dates
            other than April 12th, 2010 the defendant may
            have sold or possessed controlled substances
            or other illegal substances, and that he was
            the subject of a drug investigation in the
            past, or may have been a member of a gang, or
            may have engaged in conduct in an attempt to
            bribe, intimidate or injure witnesses, or may
            have fled police custody .
                 "That evidence was not offered and must
            not be considered for the purpose of proving
            that the defendant had a propensity or a
            predisposition to commit the crimes charged
            in this case. It was offered as evidence for
            your consideration on the questions of motive
            or intent, or to show the absence of a
            mistake or to show a common plan or scheme or
            for the purpose of identifying the defendant.
            If you find the evidence believable, you may
            consider it for that limited purpose and for
            none other."

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                              - 10 -                         No. 155
220.21[1],220.16[1]), criminal possession of marihuana in the
second degree (Penal Law § 221.25), and two counts of criminally
using drug paraphernalia in the second degree (Penal Law §§
221.50[2] and [3]).   The court sentenced defendant as a second
felony offender to 16 years' incarceration followed by 5 years'
post release supervision on the criminal possession of a
controlled substance in the first degree, 11 years' incarceration
and 3 years' post release supervision on the criminal possession
of a controlled substance in the third degree, 3 years'
incarceration and 2 years' post release supervision on the
criminal possession of marihuana in the second degree, and one
year terms each on the two counts of criminally using drug
paraphernalia in the second degree, all to run concurrently.
          On defendant's appeal the Appellate Division, Fourth
Department, in a 4-1 decision, modified on the law, reversing the
convictions on the counts of criminal possession of a controlled
substance in the first and third degrees, ordering a new trial on
those counts, and otherwise affirmed the convictions on the
remaining counts.   The majority concluded that the trial court
committed reversible error in charging the jury on the
presumption under section 220.25 (2) because the defendant was
not within "close proximity" to the controlled substances at the
time the substances were found, as required by the statute.    The
Appellate Division further concluded that the error was not
harmless because there is no way to discern whether the jury


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relied on this charge, or the constructive possession
instruction, in convicting defendant of criminal possession of a
controlled substance in the first and third degrees.    The
majority rejected defendant's remaining arguments.   One Justice
dissented, in part, concluding that the trial evidence supported
a determination that the apartment was used as a "drug factory
operation", and that defendant was in close proximity to the
cocaine when he was apprehended outside, in his vehicle.
          A Judge of this Court granted the People and defendant
leave to appeal (21 NY3d 913 [2013]).   We now affirm the
Appellate Division.


                                II.
                                A.
          The People appeal the reversal and remittal for a new
trial on the counts of the indictment for criminal possession of
a controlled substance in the first and second degrees, arguing
that the trial court properly instructed the jury under Penal Law
§ 220.25 (2).   The People contend the evidence supports the
charge because the defendant was apprehended outside the front
door of the residence, and he was under surveillance from the
moment he walked out of the building until his arrest minutes
later. The People further argue that if there was error it was
harmless because of the overwhelming evidence of defendant's
guilt on the two criminal possession charges, and because the


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jury's guilty verdict on the marihuana and paraphernalia
possession counts demonstrates that the jurors concluded
defendant constructively possessed all of the drugs in the
apartment.
             The defendant responds that while the court properly
charged the jury on constructive possession, the court should not
have instructed the jury on the Penal Law § 220.25 (2)
presumption because the latter applies only in cases where a
defendant is caught on the premises where the drugs are found,
and here defendant was arrested outside. He contends that the
error was not harmless under our holding in People v Martinez (83
NY2d 26 [1993], cert denied 511 US 1137 [1994]), because there is
no way of determining whether the jury convicted him based on the
section 220.25(2) presumption charge, or the constructive
possession charge.
             We agree with the Appellate Division that the trial
court erroneously charged the jury because defendant was not
within close proximity to the drugs as required by section
220.25(2), and that, on this record, the error was not harmless
and a new trial should be granted.


                                  II.
                                  B.
             Penal Law § 220.25(2) states, in relevant part, that:
             "[t]he presence of a narcotic drug, narcotic
             preparation, marihuana or phencyclidine in

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                                - 13 -                    No. 155
          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]).
          In accordance with the statute, a court may charge the
jury with a permissible presumption, under which the jury 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
(People v Daniels, 37 NY2d 624, 630-31 [1975]). The presumption
is rebuttable, and the jury may choose to reject its application
under the facts (id. at 631).
          This statutory presumption, referred to as the "drug
factory" presumption (People v Martinez, 83 NY2d at 29), was
intended to allow police in the field to identify potentially
culpable individuals involved in a drug business, under
circumstances that demonstrate those individuals' participation
in a drug operation3 (see Mem. of St. Commn. of Investigation,


     3
       Defendant refers to the presumption allowed under Penal
Law § 220.25(2) as the "room presumption". As we discuss, the
presumption is intended to apply to participants in a drug sale
operation, and, in a proper case, may apply to persons caught or
arrested outside of the room where the drugs are found.
Therefore, the more accurate reference, and the one we adopt, is

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                             - 14 -                          No. 155
Bill Jacket, L. 1971, ch. 1044; People v Rosado, 96 AD3d 547, 548
[1st Dept 2012], citing Donnino, Practice Commentaries,
McKinney's Cons. Laws of NY, Book 39, Penal Law § 220.25).    The
statute was designed "to remedy a fairly common situation wherein
police execute a search warrant on premises suspected of being a
'drug factory' and find narcotics in open view in the room"
(Letter from St. Commn. of Investigation, Dec. 1, 1971, Bill
Jacket, L. 1971, ch. 1044, at 6–7). “The occupants of such
‘factories,’ who moments before were diluting or packaging the
drugs, usually proclaim their innocence and disclaim ownership
of, or any connection with, the materials spread before them. The
police, under these circumstances, are often left uncertain as to
whom to arrest” (Mem. of St. Commn. of Investigation, Bill
Jacket, L. 1971, ch. 1044, at 4). By including within the scope
of the statute all persons based on physical closeness to the
drugs, regardless of any individual's property interest in the
location where the drugs are found, the drafters of the statute
also sought to address the difficulty of prosecuting persons
other than the owner or lessee of the premises (Mem. of St.
Commn. of Investigation, at 4 ["In addition, with the present
burden of proof of knowing possession of dangerous drugs on the
people[sic], successful prosecution of persons other than the
owner or lessee of such premises is extremely rare."]).
          Given the language of the statute, and with this


the "drug factory" presumption.

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                               - 15 -                        No. 155
understanding of its purpose, a defendant is in "close proximity"
within the meaning of section 220.25(2) when the defendant is
sufficiently near the drugs so as to evince defendant's
participation in an apparent drug sales operation, thus
supporting a presumption of defendant's knowing possession.      The
statute anticipates an outer boundary beyond which the
presumption does not apply, for "close proximity" defines a
spatial element requiring that defendant's physical location is
legally meaningful and suggestive of criminal involvement, but
not so distant as to vitiate the experientially-based, real-world
justification for presuming defendant has criminal possession.
            The decisive consideration for a court determining
whether a defendant is within "close proximity" is the distance
between the defendant and the drugs.    This determination is
necessarily fact specific.   Still, based on the text, the intent
of the statute, and judicial construction of section 220.25(2),
we glean certain general principles that guide a court's
analysis.
            The statute's requirement that the defendant is in
close proximity to drugs in open view in a "room, other than a
public place" supports the application of the presumption to
persons who are physically present in the room where the drugs
are found (see e.g. People v Coleman 26 AD3d 773 [4th Dept
2006][kitchen]; People v James, 266 AD2d 236 [2d Dept 1999][hotel
room]; People v Plower, 176 AD2d 214 [1st Dept 1991][living


                               - 15 -
                              - 16 -                         No. 155
room]).
          The presumption also may apply to a defendant
apprehended on the premises, but outside of the room where the
drugs are found.   As long as the proximity requirement is
satisfied, nothing in the text limits the statute's reach to
persons caught in the room itself.     However, as the case law
establishes, the proximity determination requires careful
consideration of the underlying facts related to the defendant's
location on the premises when the drugs are found (see e.g.
People v Rosado, 96 AD3d 547 [defendant fled to bathroom from
bedroom where drugs were found]; People v Pressley, 294 AD2d 886
[4th Dept 2002][defendant in room adjacent to room where drugs
were found]; People v Riddick, 159 AD2d 596 [2d Dept 1990]
[defendant was in hallway adjacent to room with drugs]; People v
Garcia, 156 AD2d 710 [2d Dept 1989] [defendant in the bathroom,
drugs in another room of the apartment]).
          Structural barriers may be a factor in determining
whether the defendant falls within the intended statutory
coverage, but are not a per se bar (see e.g. People v Hayes, 175
AD2d 13 [4th Dept 1991][defendant in a room separated from drugs
by french doors]; People v Andrews, 216 AD2d 571 [2d Dept
1995][defendant in loft above table with drugs]). As the drafters
indicated, the statute is intended to apply to a defendant who
hides "in closets, bathrooms or other convenient recesses"
(Letter from St. Commn. of Investigation at 6–7; People v McCall,


                              - 16 -
                              - 17 -                         No. 155
137 AD2d 561, 562 [2d Dept 1988][defendant discovered lying
behind a bar 50 feet from contraband]). Thus, the legislative
purpose is furthered by an interpretation that takes into account
the layout of the premises.
          Once a defendant has left the premises the
justification for presuming knowing possession is less tenable.
We have long recognized that "statutory presumptions are without
validity unless the probabilities based on experience and proof
justify them" (People v Reisman, 29 NY2d 278, 286 [1971], citing
Leary v United States, 395 US 6, 32-36 [1969] and People v
McCaleb, 25 NY2d 394, 400-404 [1969]). Where the facts and a
defendant's location lead to a conclusion counter intuitive to
"the probabilities to be drawn from common experience" (Daniels,
37 NY2d at 631), the presumption has no place.
          Nevertheless, because the statute is grounded in the
realities of police investigatory work into illegal drug sales,
the presumption may apply even in cases where a defendant has
exited the premises, when the defendant is caught in immediate
flight, or apprehended fleeing the premises "upon the sudden
appearance of the police" (Letter from St. Commn. of
Investigation, at 6–7; see e.g. People v Hogan, 118 AD3d 1263
[4th Dept 2014][fleeing the room with drugs and paraphernalia];
People v Alvarez, 8 AD3d 58 [1st Dept 2004][captured fleeing the
apartment]; People v Snow, 225 AD2d 1031 [4th Dept 1996]
[defendant admitted he had been in the dining room with the drugs


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                                - 18 -                       No. 155
but hid in the basement upon execution of the warrant]; People v
Miranda, 220 AD2d 218 [1st Dept 1995][captured fleeing the
apartment]). We need not determine on this appeal how far from
the premises defendant may be apprehended and still be subject to
the presumption. We note, however, that the boundary in these
cases is not limitless.    Suffice it to say, that each incremental
enlargement of the distance between the defendant and the
premises where the drugs are found tests the underlying
justification of the presumption, and makes it susceptible to
challenge.


                                  II.
                                  C.
             Applying these principles to the record before us, we
conclude that defendant was not in close proximity to the drugs
when they were found within the meaning of section 220.25(2).    He
was not in the room where the drugs were found, in an adjacent
room within the same apartment, or in a "closet, bathroom or
other convenient recess[]."    Nor was he found immediately outside
the premises while trying to escape.
             Here, defendant was found outside the premises, several
feet from the front door to the building where the apartment was
located.   Once outside, defendant entered and locked his vehicle
before the officers approached and eventually arrested him.
There was no evidence to suggest, and the People have not argued,


                                - 18 -
                               - 19 -                      No. 155
that defendant was in immediate flight from the premise when he
walked out into the driveway. The officers entered the apartment
several minutes after defendant had exited and was arrested, and
only because defendant's yells to "Call Chino" made the officers
apprehensive of potential danger and possible destruction of
evidence, which lead to their protective sweep of the apartment.
Therefore, the Appellate Division correctly determined defendant
was not within close proximity to the drugs, and this case was
"unlike the scenario envisioned by the Legislature" (People v
Kims, 96 AD3d 1595, 1596 [4th Dept 2012]).
          The People argue the drug factory presumption applies
because the defendant was apprehended immediately "steps away
from the front door," and officers saw him exit just prior to his
arrest. We are unpersuaded by the People's reasoning.
          The People rely on People v Daniels (37 NY2d 624),
claiming our decision in that case compels reversal here because,
like in Daniels, officers observed defendant leave prior to his
arrest outside the premises.   Daniels, however, addressed the
quantum of evidence required to properly charge the jury on
corroboration of accomplice testimony in a drug possession case.
We concluded that the evidence of contraband on the kitchen table
sufficiently connected the defendants to the crime and,
therefore, corroborated the accomplice testimony that he and the
defendants were involved in a drug business (id. at 630-31).     In
reaching our conclusion that the court properly instructed the


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                             - 20 -                          No. 155
jury on corroboration, we stated that the court's instructions
must be viewed in light of the entire record. In Daniels the
evidence showed that two defendants were apprehended in the
apartment with drugs in open view, and the third defendant, in
whose apartment the drugs were found, was arrested after he was
observed leaving the apartment.   We stated that the presumption
under Penal Law § 220.25(2) could apply in a proper case to
convict defendants in close proximity to drugs, but, given the
record, "reliance need not be placed solely on the statutory
presumption. The presence of the drugs and the defendants in the
apartment [was] a sufficient basis on which the jury could
conclude that the accomplice was telling the truth when he
testified that each of the defendants was involved in the drug
business with him" (id. at 631 [emphasis added]). Thus, our
discussion of the presumption was not necessary to our decision
(see id. at 632 [concurring opinion]). We simply recognized that
the presumption might apply in a proper case, including one in
which a defendant is in the apartment, but not the same room
where the drugs are found.
          Other cases cited by the People do not affect our
analysis of the legal principles that apply to this appeal. The
People either misread the facts, as in People v Kelly (261 AD 2d
133 [1st Dept 1999]), where despite the People's opposite
contention, the defendant was apprehended in the same room as
where drugs were found (id. at 134 ["34 vials of crack cocaine


                             - 20 -
                              - 21 -                         No. 155
[were] found within [defendant's] reach in the apartment he
shared with the seller"]), or the decisions in those cases do not
compel a different outcome in this case (see e.g. People v
Santiago 243 AD2d 328 [1st Dept 1997][court summarily concluded
defendant was in "close proximity" to the drugs as required by
section 220.25(2) and People need not prove defendant was in the
same room]; People v Alvarez, 8 AD3d 58 [1st Dept 2004][defendant
jumped out of an apartment under circumstances evincing his
attempted flight from the police]).
           To the extent the People argue that the presumption
applies so long as a defendant is under surveillance the entire
time after the defendant exits the premises, we reject this
interpretation of the statute because it lacks a definable end
point.   For example, we can discern no way to distinguish
defendant's case from one in which the officers find a defendant
down the street, or perhaps a mile away, from the house.
Following the People's reasoning to its logical conclusion, so
long as at all times a defendant is under surveillance, the
presumption applies regardless of the defendant's distance from
the premises.   As such, the People's interpretation would lead to
uncertainty, and fails to provide appropriate guidance as to how
far an officer may pursue a defendant before reaching the outer
expanse of the statute.   We believe that this interpretation
potentially extends the presumption to defendants and scenarios
that are beyond the statute's intended coverage, and lends itself


                              - 21 -
                               - 22 -                        No. 155
to abuse.
            The People claim that even if the charge was
erroneously given, the error was harmless.    We held otherwise in
People v Martinez, and on this record we find no legal
distinction between defendant's case and Martinez, thus we cannot
say the error was harmless (83 NY2d 26; see People v Crimmins, 36
NY2d 230, 242 [1975]).
            In Martinez, we concluded that where a jury returns a
general verdict and it is impossible to determine if the verdict
was based on an illegal charge, or on an alternative proper
charge -- in Martinez, as here, the alternative charge was on
constructive possession -- the error cannot be harmless (83 NY2d
26). If there is some evidence to which the jury could have
applied the impermissible charge to reach an erroneous verdict,
then a new trial should be ordered.     Here, because the jury could
have relied either on the evidence of constructive possession, or
on the room presumption to infer close proximity based on
Sawyer's testimony and the police observations, it is impossible
to determine which theory served as the basis for its verdict on
the two counts of criminal possession of cocaine.
                                III.
            Defendant asserts three grounds for reversal on his
cross appeal relating to the marihuana and drug paraphernalia
counts.   He claims that the court admitted evidence of bad acts
in violation of Molineux, the protective sweep evidence should be


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                             - 23 -                          No. 155
suppressed, and the prosecutor committed misconduct during
summation. None of these challenges support reversal of the
Appellate Division.
          Defendant argues that the court committed error in
permitting testimony about his alleged gang affiliation because
such testimony lacks any connection to the charged crimes, and
there was no testimony that any of the drugs recovered were
related to gang activity. References to defendant's alleged gang
membership and gang affiliation were improperly admitted, but the
error was harmless.
          "[E]vidence of a defendant's uncharged crimes or prior
misconduct is not admissible if it cannot logically be connected
to some specific material issue in the case, and tends only to
demonstrate the defendant's propensity to commit the crime
charged" (People v Cass, 18 NY3d 553, 559 [2012]; People v
Molineux, 168 NY 264 [1901] [remaining citations omitted]).
Evidence regarding gang activity can be admitted to provide
necessary background, or when it is "inextricably interwoven"
with the charged crimes, or to explain the relationships of the
individuals involved (see People v Faccio, 33 AD3d 1041, 1042 [3d
Dept 2006], lv denied, 8 NY3d 945 [2007]).
          Here, the references to gang activity were not relevant
to any material issue. The People's theory centered on possession
and on intent to sell. It is clear, that the testimony about
defendant's alleged gang affiliation would not have provided any


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                                - 24 -                       No. 155
relevant background information about how the drugs came to be
located in his apartment. Similarly, there was no need to explain
the defendant's relationship to the witnesses by referencing gang
affiliation; the testimony clearly indicated their status as
buyers as well as their respective relationships to the
defendant. Finally, gang affiliation was not interwoven with the
charges because there was no evidence that defendant was working
with fellow members of his gang to distribute drugs.
             However, there was overwhelming evidence of guilt,
including testimony that defendant leased the apartment where the
marihuana and drug paraphernalia were found, defendant had large
amounts of cash without any apparent lawful source for the money,
and defendant had sold drugs out of the apartment on prior
occasions.    Therefore, any error admitting testimony regarding
gang affiliation was harmless (see generally Crimmins, 36 NY2d
230).
             Defendant's other claims based on testimony of prior
bad acts are meritless. Evidence of prior drug sales was
probative of defendant's intent to sell, not merely possess the
narcotics, and it was not an abuse of discretion to find that the
probative value of the prior sales outweighed the danger of
prejudice (see Cass, 18 NY3d at 560). Evidence of defendant's
escape was probative of consciousness of guilt, and whether the
defendant was seeking to escape from being taken into custody on
a parole violation goes to the weight of the evidence not its


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                              - 25 -                       No. 155
admissibility (see People v Yazum, 13 NY2d 302, 304 [1963];
People v Bennett, 79 NY2d 464 [1992]).   The court also gave
appropriate limiting instructions as to this evidence (see e.g.
People v Rivers, 18 NY3d 222, 226 [2011] [admittance of improper
testimony minimized by curative instruction]; People v Giles, 11
NY3d 495, 500 [2008][new trial ordered where trial court erred by
failing to issue a limiting instruction to cure the potential
prejudicial effect of the evidence of the uncharged crimes]).
          The defendant's claim as to the trial court's refusal
to suppress evidence seized from his apartment subsequent to the
protective sweep presents a mixed question of law and fact.    Our
review is limited to whether there is record support for the
determinations of the court below, and "unless there is no view
of the evidence that would support that determination, we are
bound by the suppression court's finding" (People v Wheeler, 2
NY3d 370 [2004]).   McNitt's testimony that when defendant yelled
out "Call Chino", he believed the officers might be in danger and
evidence might be destroyed, supports the finding that exigent
circumstances existed (see Maryland v Buie, 494 US 325 [1990]).
          Finally, the defendant's contention that the People's
summation constituted prosecutorial misconduct is unpreserved for
review since defendant failed to object during the summation
(People v Utley, 45 NY2d 908 [1978]; People v Patterson, 121 AD2d
406 [2d Dept 1986], lv denied 68 NY2d 759 [1986]).




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                                 - 26 -                           No. 155
                                  IV.
            The Appellate Division properly concluded that
defendant was not within close proximity to the drugs found in
the apartment within the meaning of Penal Law § 220.25(2), and
that defendant's challenges to his convictions otherwise are
without merit or unpreserved.     Therefore, the order of the
Appellate Division should be affirmed.
*   *   *    *   *   *   *   *     *      *   *   *   *   *   *    *   *
Order affirmed. Opinion by Judge Rivera. Chief Judge Lippman
and Judges Graffeo, Read, Smith, Pigott and Abdus-Salaam concur.

Decided October 23, 2014




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