Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered March 28, 2011.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.
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 ) and criminal possession of a controlled substance in the third degree (§ 220.16 ). 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 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 ). 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 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 ...