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Drug Law Reform Act Of 2009 Excludes Certain Defendants From Sentence Reduction

By Stephen N. Preziosi, October 31st, 2014

criminal appeals lawyer, exclusion offense, sentence reduction, CP 440.46(5)(a), Correction Law §803(1)(d()(ii)

People v. Coleman

2014 NY Slip Op 07010

New York Court of Appeals

Decided on: October 16, 2014

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether the Drug Law Reform Act of 2009 re-sentencing exclusion applies to all offenders who are ineligible to receive a merit time allowance, including those who cannot receive those allowances solely by virtue of their recidivist sentencing adjudications; or whether it applies only to offenders who have been convicted of certain serious crimes that are specifically listed in Correctional Law §803(1)(d)(ii) which eliminates the possibility of a merit time allowance regardless of an offender’s recidivist sentencing adjudications.

Summary: Defendant was convicted, after a jury trial, of two counts of criminal sale of a controlled substance. Based on Defendant’s prior felony convictions, the trial court exercised its discretion to adjudicate Defendant a predicate felony offender. The Appellate Division for the Third Department affirmed Defendant’s conviction and a Judge of the Court of Appeals denied him leave.

Defendant filed a motion in County Court for re-sentencing pursuant to the 2009 Drug Law Reform Act (DLRA) contending that he met all of the statutory eligibility requirements and should be re-sentenced under CPL 440.46(5). The People opposed Defendant’s re-sentencing application on the theory that he was serving a sentence on a conviction for an “exclusion offense”, which rendered him ineligible for re-sentencing, CPL 440.46(5). County Court denied Defendant’s motion on the ground that he was ineligible for re-sentencing under the statute and Defendant appealed to the Appellate Division where they reversed and remitted the matter to County Court for further proceedings.

Upon remittal, Defendant submitted additional papers stating that he was eligible for re-sentencing under the 2009 DLRA because he was not serving a sentence upon a conviction for, nor did he have a predicate felony conviction for, any statutorily defined exclusion offense that would make him ineligible for re-sentencing. County Court denied, finding Defendant ineligible for re-sentencing.

The Appellate Division reversed, stating that Defendant met the basic eligibility requirements for re-sentencing under the 2009 DLRA, and had no conviction for an exclusion offense, therefore, he was eligible for re-sentencing. The Court of Appeals affirmed the Appellate Division’s order and held that Defendant was eligible for re-sentencing under the 2009 DLRA.

See Also: CPL 450.90(2) Appealing To The Court Of Appeals From Appellate Division: Mixed Questions Of Law And Fact Don’t Fly

Holding: The Court of Appeals held that the exclusion applies only to offenders who have been convicted of one or more of the serious crimes that automatically render merit time allowances unavailable under Correction Law §803(1)(d)(ii), and therefore, an offender who has no such conviction may be re-sentenced, notwithstanding his or her adjudication as a persistent violent felony.

Correction Law §803(1)(d)(ii) makes a merit time allowance unavailable by precluding re-sentencing only for individuals whose offenses are so serious as to make it impossible for them to receive a merit time allowance under the Correction Law.

A re-sentencing exclusion applies solely to a Defendant who has been convicted of a crime that absolutely prevents him or her from obtaining a merit time allowance, regardless of sentencing status, because the re-sentencing exclusion is based on the nature of the Defendant’s offense rather than his or her sentence.

Legal Analysis: The Court of Appeals held that a Defendant who meets the basic statutory eligibility requirements is eligible for re-sentencing unless he or she is serving a sentence on a conviction for, or has a predicate felony conviction for an exclusion offense under CPL 440.46(1). A Defendant is ineligible for re-sentencing if, he or she has previously been convicted of an “offense” that prevents the Defendant from receiving a merit time allowance, CPL 440.46(5)(a). Here it is undisputed that Defendant met the basic statutory eligibility requirements. Therefore, Defendant’s eligibility for re-sentencing turns to whether he was convicted of an “exclusion offense.” Under CPL 440.46(5)(a)

CPL 440.46(5) defines an exclusion offense as: a crime for which the person was previously convicted within the preceding ten years, excluding any time during which the offender was incarcerated for any reason between the time of commission of the previous felony, and the time of commission of the present felony, which was: (i) a violent felony offense as defined in Penal Law §70.02; or (ii) any other offense for which a merit time allowance is not available pursuant to Correction Law § 803(1)(d)(ii).

Correction Law § 803(1)(d)(ii), describes the circumstances that a Defendant may receive a merit time allowance, stating:

A merit time allowance shall not be available to any person serving an indeterminate sentence authorized for an A-1 felony offense, other than an A-1 felony offense defined in Penal Law article 220 (drug offenses), or any sentence imposed as defined in Penal Law §70.02 (violent felony offenses) which are, manslaughter in the second degree, vehicular manslaughter in the second degree, vehicular manslaughter in the first degree, criminally negligent homicide, incest, or an offense defined in Penal Law article 263(sexual performance by a child), or aggravated harassment of an employee by an inmate, Correction Law §803 (1)(d)(ii).

Correction Law §803 (1)(d)(ii) makes a merit time allowance unavailable to a Defendant who has been adjudicated a persistent felony offender.

The Court of Appeals agreed with the Appellate Division Third Department in People v. Coleman, 110 AD3d at 77-78, where it was held that the re-sentencing exclusion applies solely to a Defendant who has been convicted of a crime that absolutely prevents him or her from obtaining a merit time allowance, regardless of sentencing status, because the re-sentencing exclusion is based on the nature of the Defendant’s offense rather than his or her sentence.

The language suggests that a Defendant has a conviction for an exclusion offense only if the Defendant’s offense, (ie., his or her criminal conduct), Penal Law §10.00(1), constitutes a crime that necessarily causes a person convicted of it to lose any chance of obtaining a merit time allowance.

On the other hand, the same clause’s citation to Correction Law § 803(1)(d)(ii) prevents a Defendant from obtaining a merit time allowance based on the sentence authorized or imposed for his of her offense .

The Court of Appeals held, in choosing between these two readings, they are guided by the guideline that the plain terms of the Drug Law Reform Act of 2009(DLRA), like any statute, should be interpreted in a manner that effectuated the intent of the legislature, People v. Mitchell, 15 NY3d 93, 97 2010.

Although there is virtually no official legislative history of re-sentencing exclusion at issue here, the Court may look to the broader purpose of the DLRA as a whole for guidance and divining the meaning of exclusion. The Court of Appeals has made clear when the Legislature enacted the 2009 DLRA, it sought to improve the excessive punishments meted out to low-level, non-violent drug offenders under the so called “Rockefeller Drug Laws”, and therefore the statute is designed to spread relief as widely as possible, within the bounds of reason, to its intended beneficiaries.

The Court held that it is reasonable that the Legislature cited Correction Law §803(1)(d)(ii) to prevent the re-sentencing of offenders who, by their commission of the most violent and sexual offenses mentioned in that statue, have shown themselves undeserving of re-sentencing.

When viewed in context, the merit time related exclusion follows the offense based approach of the other exclusions by precluding re-sentencing only for individuals whose offenses are so serious as to make it impossible for them to receive a merit time allowance under the Correction Law. Adding, while a Defendant convicted of a class A-1 felony or any other serious crimes mentioned (drug offenses) cannot be re-sentenced under the 2009 DLRA, yet, persistent felony offenders who have no such convictions are eligible for re-sentencing.

Here, the Court of Appeals concluded that Defendant has never been convicted of any of the crimes which eliminate the possibility of a merit time allowance under Correction Law § 803(1)(d)(ii) within the relevant time period, and he meets all other eligibility criteria under 2009 DLRA. Therefore, the Court concluded that Defendant is eligible for re-sentencing.

CPL 450.90(2) Appealing To The Court Of Appeals From Appellate Division: Mixed Questions of Law And Fact Don’t Fly

By Stephen N. Preziosi, October 30th, 2014

 

criminal appeals lawyer, criminal appeals law firm, top criminal appeals lawyer, best criminal appeals lawyer

People v. Pohill

2014 NY Slip Op 07294

New York Court of Appeals

Decided on: October 28, 2014

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer 

The New York State Constitution Limits Power And Scope Of Court Of Appeal’s Authority.

Issue: Whether an appeal regarding the suppression of identification evidence (i.e a mixed question of law and fact) can be entertained by the New York Court of Appeals.

Summary: An Appeal to the Court of Appeals from the Appellate Division was dismissed. This Appeal deals with a suppression of identification of evidence. (i.e a mixed question of law and fact.). The Appellate Division reversed the trial court’s denial of the omnibus motion to suppress identification evidence, holding that the motion should have been granted.

The People sought leave to appeal to the Court of Appeals. There, it was held that the appeal should be dismissed for failing to meet the requirements of CPL 450.90(2) because the circumstances of the case presents a mixed question of law and fact. The Court of Appeals held that the Appellate Division’s reversal was not ‘on the law alone or upon the law and such facts which, but for the determination of law would not have led to reversal” CPL 450.90(2), and dismissed the appeal.

See Also: The Doctrine Of Manifest Necessity: Before Declaring A Mistrial, A Juge Must Consider All Circumstances

Holding: No, the Court of Appeals may not decide cases where there is a mixed question of law and fact. The Court determined that the case was not appealable because it a mixed question of law and fact.

Facts: Defendant was convicted of attempted robbery and the trial court denied the motion to suppress identification evidence. The Appellate Division reversed, holding that the motion should have been granted. The People sought leave to the Court of Appeals where it was determined that the case should be dismissed for failing to meet the requirements of CPL 450.90(2) because the circumstances of case presented a mixed question of law and fact.

Legal Analysis: The Court of Appeals held that CPL 450.90(2) provides that appeals to the Court of Appeals from a judgment, sentence or order may be taken if:

(a) the Court of Appeals determines that an intermediate Appellate Court’s determination of reversal or modification was on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal or modification ; or

(b)  the appeal is based upon a contention that corrective action, as that term is defined in section 470.10, taken or directed by the intermediate appellate court was illegal.

The Court’s power of review is, in general, limited to questions of law as distinguished from questions of fact or discretion, and it is empowered to review questions of fact only in certain types of cases, NY Const., Art. VI, §3(a); CPLR 5501(b). The Court of Appeals has often observed that its review mandate does not extend to the altercation of findings of fact made by the jury which have been affirmed by the Appellate Division.

In criminal capital cases in which the death penalty has been imposed, and in proceedings for the review of determinations of the State Commission on Judicial Conduct, the Court of Appeals is the appellate tribunal of first and generally last resort, and in that role it possesses plenary power to review all questions, whether law or fact.

The State Constitution empowers the Court of Appeals to review questions of fact only in a nonjury civil case or modified on appeal of judgment and has expressly or impliedly found new facts and a final judgment was entered, NY Const., Art. VI, §3(a). The reason for this exception to the general rule has been stated to be that every party is entitled to one appellate review on the facts.

The basic principle is that a question of fact is presented if there is a conflict either in the evidence or in the inferences, which can reasonably be drawn. The simplest illustration of that principle is the case in which opposing witnesses give conflicting testimony.

The Court’s power to review questions of fact, generally; constitutional provisions

Article VI, section 3(a) of the New York State Constitution, which governs the power of the Court of Appeals to review questions of fact reads as follows

(a) The jurisdiction of the Court of Appeals shall be limited to the review of questions of law except where the judgment is of death, or where the Appellate Division, on reversing or modifying a final or interlocutory judgment in an action or a final or interlocutory order in a special proceeding, finds new facts and a final judgment or a final order pursuant thereto is entered; but the right to appeal shall not depend upon the amount involved.

CPLR 5501(b), which supplements the foregoing constitutional provisions, reads as follows:

The Court of Appeals shall review questions of law only, except that it shall also review questions of fact where the Appellate Division, on reversing or modifying a final or interlocutory judgment, has expressly or impliedly found new facts and a final judgment pursuant thereto is entered. In conclusion, because the case contained a mixed question of law and fact the Court of Appeals dismissed pursuant to CPL 450.90(2).

The Doctrine Of Manifest Necessity: Before Declaring A Mistrial, A Judge Must Consider All Circumstances

By Stephen N. Preziosi, October 29th, 2014

 criminal appeals lawyer, doctrine of manifest necessity, jury deliberations, mistrial

U.S v. Therve

United States Court of Appeals for the Eleventh Circuit

764 F.3d 1293 2014

Decided on: August 20, 2014

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Judge’s Piecemeal Disclosure Of Jury Was Not Improper

Issue: Whether the declaration of a mistrial was manifestly necessary when the District Court disclosed the contents of a note from the jury that stated they were split 11 to 1 in favor of Defendant and whether the disclosure influenced the parties discussion as to how to proceed.

Summary: Defendant was indicted for bribing an Immigration and Customs Enforcement deportation officer. During deliberations, the jury sent a note to the Judge stating that they were undecided. The District Court gave an Allen charge to see if the jurors could reach a unanimous agreement. A second jury note was sent to the Judge stating that the jury was still undecided. The Judge told the parties that the note said they were split 11 to 1 in favor of Defendant. The judge determined that the jury was unable to agree unanimously and declared a mistrial.

During Defendant’s second trial, the jury found him guilty and he appealed. On Appeal, Defendant argues that the District Court failed to exercise sound discretion when it disclosed to the parties the numerical division of the jurors and how they voted. He argues that the disclosure manipulated the parties’ discussion about what course of action to take to resolve the issue of the deadlocked jury. The Court of Appeals affirmed stating that the District Court exercised sound discretion in its declaration of a mistrial.

See Also: Right To A Speedy “Re-Trial”: Calculating Speedy Trial Time On Remand From An Appellate Court

Holding: The Eleventh Circuit Court of Appeals held that the District Court was within its discretion in declaring a mistrial based on the jury’s inability to agree on a unanimous decision. The Eleventh Circuit held that the jury’s numerical division has never been a factor that the Supreme Court of Courts of Appeals’ has indicated as an appropriate consideration for determining whether manifest necessity or a mistrial exists.

Facts: Defendant was indicted for bribing an Immigration and Customs Enforcement deportation officer. During deliberations, the jury sent a note to the Judge stating that they could not reach a unanimous decision. The court gave an Allen charge, and the jury resumed its deliberations.

A second jury note was brought to the court’s attention stating that the jury was still undecided. The District Court revealed the numerical division of how they ruled: 11 not guilty, 1 guilty.

The Judge stated that he will not coerce any of the jurors to agree unanimously and called in the foreperson. The foreperson responded that the jury was never going to reach a unanimous decision and the District Court declared a mistrial.

During Defendant’s second trial, the jury found him guilty, and he appealed. On Appeal, Defendant argues that the District Court failed to exercise sound discretion when it disclosed to the parties the numerical division of the jurors and how they voted. He argues that the disclosure manipulated the parties’ discussion about what course of action to take to resolve the issue of the deadlocked jury. The Court of Appeals found that the trial judge exercised sound discretion in declaring a mistrial and affirmed.

Legal Analysis: The Court of Appeals held that they will review a mistrial order to determine whether it was manifestly necessary under all of the circumstances, United States v. Berroa, 374 F.3d 1053, 1056 11th Cir.2004. The Court held that the deference they give to the District Court’s declaration of a mistrial varies according to the circumstances, which include the basis for the order of a mistrial and the trial judge’s exercise of sound discretion in making the decision. Arizona v. Washington, 434 U.S. 497, 509-10 &fn. 28, 98 S.Ct. 824, 54 L.Ed.2d 717 1978.

To determine if a mistrial was manifestly necessary in a particular case, the Court of Appeals held that they will review the entire record in the case without limiting themselves to the actual findings of the trial court. United States v. Chica, 14 F.3d 1527, 1531 11th Cir.1994.

Under the manifest necessity doctrine, District Courts are permitted to declare a mistrial and discharge a jury where, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. United States v. Perez, 22 U.S. 9 Wheat. 579, 6 L.Ed 1824.

The Court of Appeals held that the justification for deferring to the trial court’s declaration of a mistrial in these circumstances is that the trial court is in the best position to access all the factors which must be considered in making a necessarily discretionary determination whether the jury will be able to reach a just verdict if it continues to deliberate. Without such deference, trial judges might otherwise employ coercive means to break the apparent deadlock, thereby creating a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors. Renico v. Lett, 559 U.S. 766, 774, 130 S.Ct. 1855, 176 L.Ed.2d 678 2010.

In this case, the Court of Appeals acknowledged that the trial Judge found himself in a difficult position when he received the jury’s second note that disclosed the jury’s numerical division. The jury’s first note indicated that it was hung, that the majority was one-sided, and that it did not appear the jury would reach a unanimous decision.

After the Allen charge and an additional period of deliberation, the jury returned with a second note stating that it had been 11 to 1 from the beginning, and no juror was changing his or her mind. The Court of Appeals held that they considered that the judge already had given an Allen charge without effect, again directing the jury to continue deliberations risked obtaining a verdict that was not the product of the considered judgment of all jurors.

Defendant argues that the judge manipulated the discussion by slowly disclosing the contents of the second jury note. The numerical count is not relevant to determine whether they should be sent back to deliberate.

The Court of Appeals held that the judge’s consultation with the parties is just one factor to consider in evaluating whether a mistrial ruling was sound, and even a failure to consult at all does not show that the Judge abused his discretion when the rest of the record is to the contrary.

The record in this case was clear that the jury was deadlocked and that further deliberations would not have proved helpful. The Court of Appeals held that they would prefer that in the future, judges refrain from announcing the details of splits volunteered by the jury, however, they cannot say that, in this case, the judge’s disclosure of the jury’s numerical and positional breakdown was improper. Accordingly, the Court of Appeals affirmed.

Right To A Speedy “Re-Trial”: Calculating Speedy Trial Time On Remand From An Appellate Court

By Stephen N. Preziosi, October 28th, 2014

criminal appeals attorney, speedy trial grounds, readiness, remand, cpl 30.30

People v. Wells

NY Slip Op 07012

New York Court of Appeals

Decided on: October 16, 2014

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

CPL 30.30 and Reasonable Periods Of Delay

Issue: Whether Defendant’s speedy trial rights were violated when, on remand from the Court of Appeals, the case was re-calendared and the Prosecution did not announce readiness for trial within 90 days as required by CPL 30.30.

Summary: Defendant was convicted of assault in the third degree. The Appellate Term reversed the judgment due to an improper jury charge and remanded the case for a new trial. The People sought leave to appeal to the Court of Appeals. Criminal Court adjourned Defendant’s case and the Court of Appeals denied the People’s leave application.

On remand from the Court of Appeals, the case was re-calendared and the People did not announce readiness for trial. Defendant moved to dismiss the accusatory instrument on speedy trial grounds pursuant to CPL 170.30(1)(e), arguing that more than 90 days had elapsed since the denial of leave to appeal to the Court of Appeals.

Criminal Court granted Defendant’s motion to dismiss. The Appellate Term reversed, holding that the People had no obligation to advance the case to an earlier date upon receiving the certificate denying leave. The Court of Appeals granted Defendant leave to appeal, and reversed the Appellate Term’s order stating that the Appellate Term erred in holding that the delay was automatically excludable as time resulting from an appeal.

See Also: Knowing Criminal Possession: A Defendant Must  Be Within Close Proximity To Assume The Presumption Under Penal Law § 220.25(2) 

Holding: The Court of Appeals held that the Prosecution erred under CPL 170.30(1), which states that a motion made pursuant to that section must be granted if the People are not ready for trial within ninety days of the commencement of a criminal action.

The Court of Appeals held mere lapse of time, following the date on which the order occasioning a retrial becomes final, does not itself constitute a reasonable period of delay resulting from an appeal within the meaning of CPL 30.30(4)a).

Facts: Defendant was convicted of Assault. The Appellate Term reversed the judgment due to an improper jury charge, and remanded the case for a new trial. The People then sought leave to appeal to the Court of Appeals. Criminal Court adjourned Defendant’s case and the Court of Appeals denied the People’s leave application.

Because of a clerical error in Criminal Court, Defendant’s case was not placed on the calendar, and no representative of the District Attorney was present in court on that date. Once the District Attorney’s office discovered the mis-calendaring, and informed Criminal Court, a new calendar date was set. At no time prior to the People declare themselves ready for trial.

Defendant moved to dismiss the accusatory instrument on speedy trial grounds, pursuant to CPL 170.30(1)(e), arguing that more than 90 days had elapsed since the denial of leave to appeal to the Court of Appeals. Criminal Court granted Defendant’s motion to dismiss, concluding after fact-finding hearing that there was unexplained and unexcused prosecutorial inaction with this case that lasted longer than the statutory speedy trial time allotted.

The Appellate Term reversed, holding that the People had no obligation to advance the case to an earlier date upon receiving the certificate denying leave. The Court of Appeals granted Defendant leave to appeal, and reversed the Appellate Term’s order.

Legal Analysis: The Court of Appeals held that the Appellate Term erred as a matter of law in ruling that the period from May 10, 2010 to August 23, 2010 was automatically excludable as time resulting from an appeal under CPL 30.30 (4)(a). The Court held that they agree with Criminal Court that the People provided no justification on the record for any reasonable period of delay under CPL 30.30(4)(a) to be added to the 90 days provided under CPL 30.30(1)(b).

The Court of Appeals held that CPL 170.30(1) is clear, a motion made pursuant to that section must be granted if the People are not ready for trial within ninety days of the commencement of a criminal action, wherein a Defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which if a felony. When a Defendant’s judgment is reversed, and the case is sent back for a retrial, the criminal action must be deemed to have commenced on the date the order occasioning a retrial becomes final. CPL 30.30 (5)(a)

Here, the parties do not dispute that under CPL 30.30 (5)(a) a new criminal action commenced when a Judge from the Court of Appeals denied the People leave to appeal from the Appellate Term’s order.

The People point to the fact that, under the Criminal Procedure Law, in computing the time within which the People must be ready for trial, a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: appeals, and the period during which such matters are under consideration by the court, must be excluded.

The People relied on People v. Vukel 263 AD2d 416 1st Dept. 1999, which held that when a trial court orders an adjournment for control purposes because of the pendency of a Defendant’s application for leave to appeal to the Court of Appeals, the entire period of adjournment is excludable under CPL 30.30 (4)(a), as time resulting rom the appeal.

In Vukel, the Appellate Division rejected the argument that the People have an obligation to advance the case to an earlier date upon receiving the certificate denying leave.

The Court of Appeals held that the mere lapse of time, following the date on which the order occasioning a retrial becomes final, does not itself constitute a reasonable period of delay resulting from an appeal within the meaning of CPL 30.30(4)(a). Otherwise, the People would be permitted to delay retrial for the duration of an adjournment in the trial court, no matter how lengthy, even after a Judge of the Court of Appeals has denied leave to appeal, without consequence under CPL 30.30. The Court of Appeals held that such a rule would be inconsistent with the dominant legislative intent informing CPL 30.30 namely, to discourage prosecutorial inaction. People v. Price, 14 NY3d 61 2010. To the extent Vukel holds otherwise, the Court of Appeals held that it should not be followed.

Accordingly, the Court of Appeals reversed the Appellate Term’s order and reinstated the order of Criminal Court.

Knowing Criminal Possession: A Defendant Must Be Within Close Proximity To Assume The Presumption Under Penal Law §220.25(2)

By Stephen N. Preziosi, October 27th, 2014

empire state night

People v. Kims

2014 NY Slip Op 07196

New York Court of Appeals

Decided on: October 23, 2014

Blog By Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether the trial court erred when it instructed the jury on Defendant’s knowing criminal possession of drugs under the drug factory presumption of Penal Law §220.25(2), which states that the jury may assume possession because the Defendant, while not in actual 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 where Defendant was outside the premises, entering his car when the drugs were found in his apartment.

Summary: Task Force informed Defendant’s parole officer that Defendant was operating a drug “stash house.” Parole visited the address under surveillance and witnessed Defendant and his cousin exiting the house and walking towards Defendant’s car. When Parole called out to Defendant, he entered the car, locked the doors and reached into the console area. The Officers drew their guns and secured Defendant.

A subsequent search of the vehicle revealed packages of cocaine and Defendant was arrested. Task Force joined the Parole officers and asked Defendant if there was anyone in the residence; Defendant failed to answer. Concerned with potential danger to the officers and the destruction of evidence, the officers entered the apartment. On the kitchen counter, in plain view, was a bowl filled with cocaine and other paraphernalia.

At trial, the judge instructed the jury under two theories of criminal possession, based on Defendant’s lack of actual possession in accordance with Penal Law §220.25(2). The judge also instructed the jury on constructive possession for all of the charges and the jury convicted Defendant. The Appellate Division reversed and found that the trial court erred 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 was found. The Court of Appeals affirmed the Appellate Division.

See Also: The Limited Power Of The New York Court Of Appeals: Mixed Questions Of Law And Fact

Holding: The Court of Appeals held that the trial court erred when it instructed the jury on Defendant’s knowing criminal possession of drugs under the drug factory presumption of Penal Law § 220.25(2) because the Defendant was not within close proximity to the drugs found in his apartment once he exited the premises and entered his car, and no evidence suggesting that he was in immediate flight from the premises in an attempt to escape arrest.

Facts: Task Force informed Defendant’s parole officer that Defendant was operating a drug “stash house.” Parole visited the address under surveillance and witnessed Defendant and his cousin exiting the house and walking towards Defendant’s car. When Parole called out to Defendant, he entered the car, locked the doors and reached into the console area. The Officers drew their guns and secured Defendant.

A subsequent search of the vehicle revealed packages of cocaine and Defendant was arrested. Task Force joined the Parole officers and asked Defendant is there was anyone in the residence; Defendant failed to answer. Concerned with potential danger to the officers and the destruction of evidence, the officers entered the apartment. On the kitchen counter, in plain view, was a bowl filled with cocaine and other paraphernalia.

At trial, the judge instructed the jury under two theories of criminal possession, based on Defendant’s lack of actual possession in accordance with Penal Law §220.20(2). The judge also instructed the jury on constructive possession and the jury convicted Defendant on all counts. The Appellate Division reversed and found that the trial erred 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 was found. The Court of Appeals affirmed the Appellate Division.

Legal Analysis: In this appeal, the Court of Appeals held that they do not need to determine how far from the premises Defendant may be apprehended and still be subject to the presumption. The Court noted, however, that the boundary in these types of cases is not limitless. 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. Applying these principles to the record, the Court of Appeals concluded that Defendant was not in close proximity to the drugs when they were found within the meaning of section 220.25(2).

Penal Law § 220.25(2) states that the presence of a narcotic preparation, marijuana or phencyclidine in 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.

The Court held that the decisive consideration for a court determining whether a Defendant is within close proximity is the distance between the Defendant and the drugs. Here, Defendant 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.

The Court of Appeals held that the 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 that Defendant was in immediate flight from the premises when he walked out into the driveway.

The Court of Appeals held that, given the language of the statute, and with this 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. Therefore, the Appellate Division correctly determined Defendant was not within close proximity to the drugs and affirmed.