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


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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.


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