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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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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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