Issues before the court:

(1) Whether the court in a bench trial properly considered the drug factory presumption (Penal Law § 220.25), to find the element of possession;

(2) Whether counsel was ineffective for failing to effectuate the defendant’s intention to testify in the grand jury.  Defense counsel told the prosecutor that the defendant would not testify without consulting with his client first. 

 

Held:

(1) The factfinder properly considered the drug factory presumption because the circumstances when the police entered the apartment – bagged and loose crack and cocaine and baggies — were in plain view and the defendant’s former girlfriend, who had been handling the cocaine before the police arrived, testified that she was “[p]robably” going to sell the cocaine.  A razor blade was also in plain view, near the defendant.  “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.” Accordingly, the factfinder was permitted to conclude that the defendant knowingly possessed the drugs.

(2) Defendant was not deprived of the effective assistance of counsel.  Whether to testify in the grand jury is not a “fundamental” decision belonging to the defendant (in contrast to the right to testify at trial), as, though “significant,” it is “a limited statutory right,” not a constitutional right.  As such, whether to testify is a strategic decision, “an appropriate one for the lawyer, not the client.”  Further, even when no strategy is involved, a defendant must then show prejudice, that “if he or she ‘had . . . testified in the grand jury, the outcome would have been different.’”  Here, the defendant could not establish this, as both defendant and his former girlfriend testified at trial, and he was nonetheless convicted. 

 

CAL Observes:

In holding that the decision whether to testify in the grand jury belongs to counsel, the Court has put to rest a long-open question, and the resolution is likely to  disappoint, if not infuriate, many defendants for whom whether to testify in the grand jury is uniquely personal and important. Defense lawyers now have license to decide, even without consulting with their clients, that testifying in the grand jury is a bad idea, and although it usually is, it is hard to understand, as Judge Rivera pointed out in her lone dissent, how a strategic decision can be made absent consultation with the defendant about what he would say.   Ironically, Hogan would seem to give rise to a different IAC claim — that a lawyer who allows his or her client to testify in the grand jury simply because the client wants to, may be susceptible to an IAC claim on the ground that counsel did not “exercis[e] his or her professional judgment,” thus depriving the defendant of “the expert judgment of counsel to which the Sixth Amendment entitles” him or her. Note Judge Rivera’s dissent, relying exclusively on the state constitutional right to effective assistance, as well as her disagreement with the majority’s decision on the applicability of the drug factory presumption.  Regarding the latter, Judge Rivera stated that the “common indicia” of a drug factory were lacking (guns, cash, large amount of drugs), and “the facts [did] not discount intended personal use of the drugs,” as to relieve the prosecution from proving possession.