               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

724
KA 11-00863
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

STANLEY R. KIMS, II, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL),
FOR DEFENDANT-APPELLANT.

STANLEY R. KIMS, II, DEFENDANT-APPELLANT PRO SE.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered March 28, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the first degree, criminal possession of a controlled
substance in the third degree, criminal possession of marihuana in the
second degree and criminally using drug paraphernalia in the second
degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
modified on the law by reversing those parts convicting defendant of
criminal possession of a controlled substance in the first degree and
criminal possession of a controlled substance in the third degree and
as modified the judgment is affirmed, and a new trial is granted on
counts one and two of the indictment.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, criminal possession of a
controlled substance in the first degree (Penal Law § 220.21 [1]) and
criminal possession of a controlled substance in the third degree (§
220.16 [1]). We agree with defendant that County Court erred in
charging the jury with respect to the presumption contained in Penal
Law § 220.25 (2). That presumption, known as the “room presumption,”
provides that the presence of, inter alia, a “narcotic drug . . . in
open view in a room,” under circumstances evincing an intent to sell
the drug, “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” (id. [emphasis
added]). Thus, “[w]hen narcotics are found in open view in a room on
private premises, every person ‘in close proximity’ to the drugs at
the time of discovery is presumed by statute to have knowingly
possessed them” (People v Daniels, 37 NY2d 624, 630-631; see People v
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Coleman, 26 AD3d 773, 775, lv denied 7 NY3d 754).

     Our inquiry with respect to Penal Law § 220.25 (2) on this appeal
turns on the interpretation of the “close proximity” language of the
statute. “Penal statutes ‘must be construed according to the fair
import of their terms to promote justice and effect the objects of the
law’ ” (People v Fraser, 264 AD2d 105, 110, affd 96 NY2d 318, cert
denied 533 US 951, quoting § 5.00; see People v Miller, 70 NY2d 903,
906), and it is fundamental that in interpreting a statute we should
attempt to effectuate the intent of the Legislature (see Majewski v
Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583). The “room
presumption” was added to the Penal Law in 1971 (see L 1971, ch 1044)
and, according to its drafters, was intended to address situations in
which the police execute a search warrant at a suspected “ ‘drug
factory’ ” only to find drugs and drug paraphernalia scattered about
the room. “The occupants of such ‘factories,’ who moments before were
diluting or packaging the drugs, usually proclaim[ed] their innocence
and disclaim[ed] ownership of, or any connection with, the materials
spread before them,” thus often leaving the police “uncertain as to
whom to arrest” (Mem of St Commn of Investigation, Bill Jacket, L
1971, ch 1044, at 4). Moreover, a letter from the chairperson of the
State Commission of Investigation, which drafted this statutory
provision, further explains that the phrase “in close proximity” was
included “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,” and that “[i]t is also
intended to include persons who might, upon the sudden appearance of
the police, hide in closets, bathrooms or other convenient recesses”
(Letter from St Commn of Investigation, Dec. 1, 1971, Bill Jacket, L
1971, ch 1044, at 6-7).

     Here, unlike the scenario envisioned by the Legislature,
defendant walked out the “front” of his apartment, entered his nearby
vehicle and was apprehended almost immediately by parole officers who
were investigating whether he resided at that location. Several
minutes later, parole officers and police detectives entered
defendant’s apartment to conduct a warrantless protective search. The
officers found another person present in the apartment and discovered
a significant amount of cocaine in the rear area of the apartment, and
that cocaine was seized in a subsequent search conducted pursuant to a
search warrant.

     Consequently, based on the facts of this case, we conclude that
“defendant was not in ‘close proximity to such controlled substance at
the time such controlled substance was found’ ” (People v Edwards, 23
AD3d 1140, 1141, quoting Penal Law § 220.25 [2]). We further conclude
that the court’s error in charging the presumption cannot be
considered harmless inasmuch as there is no way to discern whether the
jury’s verdict convicting defendant of criminal possession of a
controlled substance in the first degree and criminal possession of a
controlled substance in the third degree, i.e., the only counts with
respect to which the presumption was charged, “ ‘was predicated on the
illegally charged presumption or on a finding of constructive
possession irrespective of the presumption’ ” (id. at 1142, quoting
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People v Martinez, 83 NY2d 26, 35, cert denied 511 US 1137). We
therefore modify the judgment by reversing those parts convicting
defendant of criminal possession of a controlled substance in the
first degree and criminal possession of a controlled substance in the
third degree, and we grant a new trial on those counts of the
indictment (see People v Rodriguez, 104 AD2d 832, 834).

     We respectfully disagree with our dissenting colleague that we
should apply the reasoning of the First Department in People v Alvarez
(8 AD3d 58, 59, lv denied 3 NY3d 670) to the facts of this case. In
Alvarez, the First Department concluded that the trial court properly
charged the jury with respect to the room presumption where the
defendant was not apprehended in the apartment in question and the
police did not see him fleeing therefrom. The trial evidence in
Alvarez, however, “clearly warranted” the conclusion that the
defendant jumped out of the window of the apartment in which the drugs
were found, inasmuch as the defendant was discovered injured in the
backyard area below the window, and was attempting to flee by climbing
a fence (id.).

     Put differently, the defendant in Alvarez, who appears to have
been the only occupant of the apartment in which the drugs were
located, was found in flight and physically close to a makeshift exit
from that apartment. Here, in contrast to the facts in Alvarez,
defendant was not in flight from the police; he was apprehended in the
driveway outside the apartment several minutes after leaving the
apartment in which the drugs were found; and the apartment was
occupied by another person. Given the distance in time and space
present here but absent from Alvarez, we respectfully disagree with
our dissenting colleague that Alvarez applies here.

     We now turn to defendant’s remaining contentions. Contrary to
defendant’s contention, the court’s pretrial Molineux ruling does not
constitute an abuse of discretion. The evidence of defendant’s prior
drug sales and association with drug dealers was probative of “legally
relevant and material issue[s] before the [jury]” (People v Alvino, 71
NY2d 233, 242; see People v Satiro, 72 NY2d 821, 822; People v Ray, 63
AD3d 1705, 1706, lv denied 13 NY3d 838; Prince, Richardson on Evidence
§ 4-510 [Farrell 11th ed]). In addition, “ ‘[t]he limited probative
force of . . . evidence [with respect to defendant’s escape from
custody] is no reason for its exclusion’ ” (People v Roman, 60 AD3d
1416, 1418, lv denied 12 NY3d 928, quoting People v Yazum, 13 NY2d
302, 304, rearg denied 15 NY2d 679) and, here, the court gave a jury
instruction that conveyed the “weakness [of that evidence] as an
indication of guilt of the crime[s] charged” (Yazum, 13 NY2d at 304).
In any event, any error with respect to the Molineux ruling is
harmless (see People v Baker, 21 AD3d 1435, 1436, lv denied 6 NY3d
773; see generally People v Crimmins, 36 NY2d 230, 241-242). We
further conclude that “ ‘any alleged [prosecutorial] misconduct was
not so pervasive or egregious as to deprive defendant of a fair
trial’ ” (People v Szyzskowski, 89 AD3d 1501, 1503; see People v
Pruchnicki, 74 AD3d 1820, 1822, lv denied 15 NY3d 855). Contrary to
defendant’s contention, the court properly refused to suppress
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                                                         KA 11-00863

evidence seized from his apartment subsequent to a warrantless
protective search (see People v Lasso-Reina, 305 AD2d 121, 122, lv
denied 100 NY2d 595; see generally People v Bost, 264 AD2d 425, 426).

     Defendant contends in his pro se supplemental brief that the
evidence seized from his vehicle and apartment should be suppressed
because the parole officers who stopped him in his vehicle acted as
conduits for, or agents of, the police. Defendant sets forth a
similar contention with respect to the evidence seized from his
apartment in his main brief. Even assuming, arguendo, that defendant
initially preserved those contentions for our review (see generally
People v Mendoza, 82 NY2d 415, 428), we conclude that he thereafter
abandoned them (see People v Adams, 90 AD3d 1508, 1509, lv denied 18
NY3d 954; People v Anderson, 52 AD3d 1320, 1320-1321, lv denied 11
NY3d 733). Defendant’s further contention in his pro se supplemental
brief that he was denied his right of confrontation with respect to
the testimony of a police detective is unpreserved for our review (see
People v Davis, 87 AD3d 1332, 1334-1335, lv denied 18 NY3d 858, 956).
In any event, that contention lacks merit. The detective testified
that he learned from a confidential informant that defendant’s
residence might be used as a “stash house,” i.e., a place to keep
drugs and money and to package drugs for sale. We conclude that such
testimony was properly admitted in evidence for the purpose of
explaining the actions of the police and the sequence of events
leading to defendant’s arrest (see People v Davis, 23 AD3d 833, 835,
lv denied 6 NY3d 811; see also People v Tosca, 98 NY2d 660, 661).
Finally, we conclude that the court properly admitted in evidence the
drugs at issue despite the alleged gaps in the chain of custody with
respect thereto. “The police provided sufficient assurances of the
identity and unchanged condition of the evidence . . ., and thus any
alleged gaps in the chain of custody went to the weight of the
evidence, not its admissibility” (People v Kennedy, 78 AD3d 1477,
1478, lv denied 16 NY3d 798; see People v Hawkins, 11 NY3d 484, 494).

     All concur except SCUDDER, P.J., who dissents in part and votes to
affirm in the following Memorandum: I respectfully dissent in part.
I disagree with the majority that County Court erred in charging the
jury with respect to the presumption set forth in Penal Law § 220.25
(2), and I would therefore affirm the judgment in its entirety.

     The record establishes that cocaine and drug packaging
paraphernalia were located in plain view in the kitchen of the
apartment rented by defendant. The kitchen was in the rear of the
apartment, and the police discovered the contraband approximately five
minutes after parole officers observed defendant and another person
exit the front door of the apartment, which was located in the living
room. Defendant’s companion admitted that he had purchased drugs from
defendant immediately before the two left the apartment together. A
third person was in the apartment with defendant and his companion,
and that person, i.e., “Chino,” appeared to be asleep on the couch in
the living room when the police entered the apartment. While he was
detained by police in the driveway, defendant yelled to bystanders,
“call Chino, call Chino.” The record also establishes that the
address of defendant’s approved residence for parole purposes was
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                                                         KA 11-00863

different from the address where the subject contraband was located,
and that there were no beds in the two-bedroom apartment where the
contraband was located. In my view, these facts support a
determination that the apartment defendant rented was used as a “drug
factory operation” (People v Martinez, 83 NY2d 26, 29, cert denied 511
US 1137), and thus that the court properly instructed the jury that it
was permitted to consider whether defendant was in knowing possession
of the cocaine at the time it was found.

     The court charged the jury that “the presence of a narcotic drug
. . . in open view in a room under circumstances evincing an intent .
. . to 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 was found . . . The People
must prove 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
. . . to prepare the cocaine for sale [. If you so find . . .], then
you may, but you 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” (emphasis added).

     In People v Alvarez (8 AD3d 58, 59, lv denied 3 NY3d 670), the
First Department concluded that the trial court properly charged the
jury on the presumption contained in Penal Law § 220.25 (2) where the
defendant was found outside of the apartment in which the drugs were
located and the police deduced that he had jumped out of a window. In
my view, we should apply the reasoning of the Alvarez Court to this
case. The cocaine was “in open view in a room . . . under
circumstances evincing an intent to unlawfully . . . package or
otherwise prepare [it] for sale” (§ 220.25 [2]; cf. Martinez, 83 NY2d
at 34 n 3). Further, approximately five minutes before the cocaine
was found by the police, defendant was observed leaving the apartment
that he rented but may not have used as his residence, and he was in
the company of a person who admitted that he had purchased cocaine
from defendant. Thus, the court properly determined that the jury
could find that defendant was in close proximity to the cocaine when
he was apprehended in his car in the driveway (see Alvarez, 8 AD3d at
59).

     The majority’s reliance on People v Edwards (23 AD3d 1140, 1141)
is misplaced. In Edwards, the bag of cocaine was not found in a room
of the subject apartment but instead was found on the bottom step of a
stairway leading to the apartment, and defendant was found in the rear
of the apartment. We concluded that “the controlled substance was not
‘in open view in a room’ and that, in any event, defendant was not in
‘close proximity to such controlled substance at the time such
controlled substance was found’ ” (id. at 1141). If defendant herein
had not been observed leaving the apartment less than five minutes
before the cocaine was found, I would agree with the majority that
Edwards is analogous. However, in my view, the facts presented here
support the determination that defendant was in close proximity to the
controlled substance at the time it was found and thus that the court
properly instructed the jury that it was entitled to infer that
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defendant was in knowing possession of the cocaine.




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
