People v. Stanley R. Kims, II
AD4 order dated June 15, 2012, modifying judgment of conviction by granting a new trial as to two top counts and otherwise affirming. Decision below: 96 AD3d 1595, 947 NYS2d 729. Smith, J., granted leave April 24, 2013.
ISSUES PRESENTED: (1) Whether, where defendant was arrested after walking out of his apartment and getting into his car, the room presumption (P.L. §220.25) for narcotics found in open view, applicable to every person "in close proximity" to the drug, is applicable. (2) Whether the warrantless "protective sweep" was proper. (3) Molineux evidence of prior uncharged drug sales.
Issues Before The Court:
(1) Whether, where defendant was arrested after walking out of his apartment and getting into his car, the “drug factory” presumption of knowing possession (P.L. §220.25) for narcotics found in open view, applicable to every person “in close proximity” to the drug, is applicable. (2) Whether the warrantless “protective sweep” was proper.
1. The “drug factory” statutory presumption of knowing possession did not apply;
2. Exigent circumstances justified officers' protective sweep of defendant's apartment;
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 selling operation.
To apply the presumption, the defendant need not be in the same room as the drugs [hiding in closet may be enough], or even on the same “premises,” if the defendant “is caught in immediate flight, or apprehended fleeing the premises ‘upon the sudden appearance of the police.’” In Kims, the defendant had left the apartment building, gotten inside his car and locked the car door before the officers approached. There was no indication that he was “in flight” when he left the building. It does not matter that the defendant was in police view as he walked from his building to the car.
The court found the error not to be harmless because it was impossible to know if jurors followed the bad charge or relied on the proper, alternative charge of constructive possession.
The Court upheld non-suppression of the drugs found in the apartment. The police properly entered without a warrant, pursuant to a “protective sweep.” Right after the defendant was taken into custody, he yelled to bystanders to “call Chino” and refused to answer when the police asked if anyone was in the apartment. This was issue of “mixed law and fact” and there was support in the record for the suppression court’s finding of exigent circumstances.
The Court also held that trial court erred in permitting evidence referring to the defendant’s gang affiliation but found the error to be harmless. Other bad acts were properly admitted to show intent to sell the drugs found in his apartment.