A person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance;  provided, however, that it shall not be a violation of this section when a person possesses a residual amount of a controlled substance and that residual amount is in or on a hypodermic syringe or hypodermic needle obtained and possessed pursuant to section thirty-three hundred eighty-one of the public health law;  nor shall it be a violation of this section when a person's unlawful possession of a controlled substance is discovered as a result of seeking immediate health care as defined in paragraph (b) of subdivision three of section 220.78 of the penal law, for either another person or him or herself because such person is experiencing a drug or alcohol overdose or other life threatening medical emergency as defined in paragraph (a) of subdivision three of section 220.78 of the penal law.

Criminal possession of a controlled substance in the seventh degree is a class A misdemeanor.

A person is guilty of criminal possession of a controlled substance in the third degree when he knowingly and unlawfully possesses:

A person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells:

Eng, P.J., Sgroi and Miller, JJ., concur.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered October 20, 2009, convicting him of criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. By decision and order of this Court dated August 2, 2011, the judgment was reversed, and the first count of the indictment, which charged criminal possession of a controlled substance in the third degree, was dismissed (see People v McFadden, 87 AD3d 554 [2011]). By order of the Court of Appeals dated December 28, 2011, the People were granted leave to appeal from the decision and order of this Court (see People v McFadden, 18 NY3d 860 [2011]). By opinion and order of the Court of 1021*1021 Appeals dated December 13, 2012, the decision and order of this Court was reversed, the first count of the indictment, which charged criminal possession of a controlled substance in the third degree, was reinstated, and the matter was remitted to this Court for consideration of the issues raised but not determined on the appeal to this Court (see People v McFadden, 20 NY3d 260 [2012]).

Ordered that, upon remittitur from the Court of Appeals, the judgment is modified, on the facts, by reducing the defendant's conviction of criminal possession of a controlled substance in the third degree to criminal possession of a controlled substance in the seventh degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for the imposition of a sentence of time served on the conviction of criminal possession of a controlled substance in the seventh degree.

The defendant was charged with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree. At his first trial, the jury deadlocked on the two higher charges, and the defendant agreed to a partial verdict, limited to the count alleging that he committed the offense of criminal possession of a controlled substance in the seventh degree. The Supreme Court accepted a partial verdict of guilty on that count, and declared a mistrial on the two remaining counts, including the greater offense of criminal possession of a controlled substance in the third degree. Thereafter, a second trial was conducted.

After his second trial, the jury found the defendant guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1] [possession with intent to sell]), but not guilty of criminal sale of a controlled substance in the third degree. Following this verdict, the Supreme Court set aside the conviction of the inclusory concurrent count of criminal possession of a controlled substance in the seventh degree, and thereafter sentenced the defendant to a determinate term of imprisonment of seven years, to be followed by a period of three years of postrelease supervision. The defendant appealed from the judgment, contending that he had been subjected to double jeopardy, and that his conviction of criminal possession of a controlled substance in the third degree was against the weight of the evidence. In a decision and order of this Court dated August 2, 2011, the judgment was reversed on double jeopardy grounds, and the first count of the indictment, which charged criminal 1022*1022 possession of a controlled substance in the third degree, was dismissed (see People v McFadden, 87 AD3d 554 [2011]). Upon reaching this conclusion, this Court declined to reach the defendant's weight-of-the-evidence argument, since it had been rendered academic.

In an opinion and order dated December 13, 2012 (see People v McFadden, 20 NY3d 260 [2012]), the Court of Appeals reversed this Court's decision. The Court of Appeals also remitted the matter to this Court for consideration of the issues raised but not determined on the appeal to this Court, to wit, whether the defendant's conviction of criminal possession of a controlled substance in the third degree was against the weight of the evidence.

"Upon defendant's request, the Appellate Division must conduct a weight of the evidence review" and, thus, "a defendant will be given one appellate review of adverse factual findings" (People v Danielson, 9 NY3d 342, 348 [2007]; see CPL 470.15 [5]; People v Romero, 7 NY3d 633, 636 [2006]). There is no preservation requirement for appellate weight-of-the-evidence review (see People v Mann, 63 AD3d 1372, 1373 [2009]). If a finding in favor of the defendant would not have been unreasonable, then "the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" (People v Danielson, 9 NY3d at 348). Once the Court conducts such an analysis, it must then decide whether the verdict finding the defendant guilty beyond a reasonable doubt was warranted. "Essentially, the court sits as a thirteenth juror and decides which facts were proven at trial" (id., citing Tibbs v Florida, 457 US 31, 42 [1982]; see People v Noble, 86 NY2d 814, 815 [1995]). If it appears that the fact finder "`failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict'" (People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004], quoting People v Bleakley, 69 NY2d 490, 495 [1987]).

Upon conducting our analysis in this case, in accordance with the above principles, we conclude that the verdict convicting the defendant of criminal possession of a controlled substance (here, cocaine) in the third degree was against the weight of the evidence. To establish a defendant's guilt of this crime, the People must prove that the defendant "knowingly and unlawfully possesses... a narcotic drug with intent to sell it" (Penal Law § 220.16 [1] [emphasis added]).

At trial, the People's witness, a New York City Police Department detective, testified that, on the day of the arrest, July 22, 1023*1023 2008, he and his partner, a New York City Police Department sergeant, were seated in an unmarked police car observing an area near the beach in Far Rockaway, Queens. At around 6:30 p.m., the detective observed two males meet, face each other, and "instantaneously" exchange something from right hand to right hand. These men were later identified as the defendant and a man named Jamie Lopez. However, on cross-examination, the detective admitted that he did not actually see anything transferred between Lopez and the defendant.

The police sergeant offered a similar account. He testified that he saw two men stop and look at each other, and then saw the defendant, without reaching into his pocket, hand a "white piece of paper to the other individual, in exchange for money." The sergeant offered conflicting testimony as to how long this transaction lasted, stating at one point in his testimony that it was merely seconds and at another point that it was long as two to three minutes. After making their observations, the police officers arrested Lopez and the defendant.

After the arrest, the officers recovered two bags of marijuana from Lopez, as well as a "white envelope of cocaine [bearing a picture of] a seal with a ball on its nose and the word `Seal.'" From the defendant's person, the officers recovered "[f]our white envelopes of cocaine, with a seal on it, a ball on the seal's nose and word `Seal' itself, and $20."

Lopez testified for the defense. He testified, inter alia, that he was a housekeeper at Brookhaven Nursing Home (hereinafter Brookhaven) in Far Rockaway. He stated that he knew the defendant because the defendant previously worked at Brookhaven, but that the two men worked different shifts and did not socialize. Lopez stated that, on the day of the arrest, at some time before 2:00 p.m., he had purchased one packet of cocaine in "blue white cellophane paper," which had the word "Seal" and a picture of a seal on it, outside of a store on 20th Street, from someone other than the defendant. Lopez further stated that he had previously purchased cocaine from this seller, but he did not know his name; that he had previously purchased cocaine at that location; and that he had previously purchased cocaine with the word "Seal" on it. Lopez testified that, following this purchase, he went to the nursing home to start his shift, which began at 2:00 p.m.

According to Lopez, later that day, at 6:00 p.m., he went on his dinner break. At that time, Lopez still had the "Seal" packet of cocaine that he had purchased earlier in the day. He testified that it was a sunny day, and that he walked onto the dunes near the beach, across the street from Brookhaven, where he 1024*1024observed the defendant approximately 25 to 30 feet away from him, fishing on the beach along with two other men. As Lopez recalled it, Lopez waved to the defendant, and remained either on the dunes or a nearby dock for about two minutes before heading back to the nursing home. Lopez further testified that, as he walked on the boardwalk, he was stopped by the police, who thereafter searched him, found cocaine and marijuana on his person, and handcuffed him. Lopez asserted that did not see the defendant until five minutes later, when the police brought him, in handcuffs, towards a police car. Lopez testified that he did not see what transpired between the time he was arrested and the time he saw the defendant in handcuffs. Finally, Lopez testified that he did not buy any drugs from the defendant on July 22, 2008.

Given Lopez's testimony, it would not have been unreasonable for the jury to find that the defendant had no intent to sell the four packets of cocaine that the defendant was carrying on the date that he was arrested. Indeed, it would have been reasonable for the jury to credit Lopez's testimony and find that the defendant was fishing on the beach, and that he merely possessed the four packets of cocaine for his own personal use (see People v Vega, 254 AD2d 313 [1998]; People v Washington, 209 AD2d 560 [1994], affd 87 NY2d 945 [1996]; People v Hernandez, 203 AD2d 479 [1994]; cf. People v Cruz, 197 AD2d 630 [1993]; People v Patton, 187 AD2d 538 [1992]). As our dissenting colleague correctly points out, the defendant's acquittal on the charge of criminal sale of a controlled substance in the third degree does not necessarily render his conviction on the charge of criminal possession of a controlled substance in third degree as against the weight of the evidence. However, the jury apparently rejected the testimony of both the detective and the sergeant concerning the defendant's alleged sale of cocaine to Lopez, and the record is otherwise bereft of any evidence of the defendant's intent to sell (see People v Fisher, 104 AD3d 868, 869-870 [2013]; People v Lindsey, 52 AD3d 527, 529-530 [2008]).

As noted above, the amount of cocaine recovered from the defendant was relatively small and not inconsistent with personal use. Indeed, convictions for criminal possession of a controlled substance involving intent to sell generally stem from situations where a significantly greater quantity of drugs is recovered from the defendant's person (see e.g. People v Pedroza, 48 AD3d 706 [2008]; People v Conyers, 48 AD3d 362 [2008]; People v Robinson, 26 AD3d 202 [2006]; People v Fallen, 249 AD2d 771 [1998]; People v Walton, 184 AD2d 675 [1992]). Even more important, the defendant was found to be in possession of no 1025*1025drug paraphernalia or weapons, and he had only $20 in cash (see People v McCoy, 59 AD3d 856, 857 [2009] [there was insufficient evidence to prove that the defendant was guilty of criminal possession of a controlled substance in the third degree where he was carrying no cash and there was no evidence that he possessed "a weapon or any paraphernalia commonly associated with the sale of drugs (a)nd ... no testimony established that the small quantity of heroin found in his possession was inconsistent with personal use" (citations omitted)]; see also People v Alvino, 71 NY2d 233, 245 [1987]; People v Smith, 74 AD3d 1249 [2010]; People v Jones, 47 AD3d 961 [2008]; People v Barton, 13 AD3d 721 [2004]). Although there was testimony that street drug sales often involve bags of drugs costing $20 each, the mere fact that the defendant was in possession of a single $20 bill cannot be considered indicative of an intent to sell.

Accordingly, we conclude that the rational inferences which can be drawn from the evidence presented at trial do not support the conclusion that the defendant intended to sell the packets of cocaine which were found in his possession. Thus, his conviction of criminal sale of a controlled substance in the third degree was against the weight of the credible evidence, and must be vacated.

Nonetheless, the evidence demonstrates beyond a reasonable doubt that the defendant knowingly and unlawfully possessed cocaine, so as to support a conviction of the offense of criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03). Accordingly, we modify the judgment by reducing the conviction of criminal possession of a controlled substance in the third degree to criminal possession of a controlled substance in the seventh degree (see CPL 470.15 [2] [a]; People v Smith, 74 AD3d 1249, 1250 [2010]; People v Cotton, 226 AD2d 738 [1996]). Since the defendant has already served the maximum permissible sentence that could have been imposed upon a conviction of criminal possession of a controlled substance in the seventh degree (see Penal Law §§ 70.15 [1]; 220.03; People v Nunez, 127 AD2d 801 [1987]), the matter must be remitted to the Supreme Court, Queens County, for the imposition of a sentence of time served on the conviction of that offense (see generally People v Ju Ju Jiang, 99 AD3d 724, 725 [2012]; People v Seymour, 77 AD3d 976, 980 [2010]).

Dillon, J., dissents, and votes, upon remittitur from the Court of Appeals, to affirm the judgment, with the following memorandum:

I respectfully dissent, as I believe that the defendant's 1026*1026 conviction of criminal possession of a controlled substance in the third degree is not against the weight of the evidence (see Penal Law § 470.15 [5]).

If a finding in favor of a defendant would not be unreasonable, an appellate court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence, and evaluate the strength of such conclusions, and then decide, based of the weight of the credible evidence, whether the jury's verdict was justified (see People v Danielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d 633, 645-646 [2006]). Here, although an acquittal on the charge would not have been unreasonable, the credible evidence and the relative strength of conflicting inferences should permit the jury's verdict to stand. The defendant's acquittal of the charge of criminal sale of a controlled substance in the third degree does not necessarily render the defendant's conviction of criminal possession of a controlled substance in the third degree, based on an intent to sell, against the weight of the evidence (see People v Miller, 282 AD2d 550, 551 [2001]; People v Rivera, 304 AD2d 329, 330 [2003]). The defendant was found in possession of four "branded" packets of cocaine in an area where a trial witness had purchased an identically branded $20-packet of cocaine earlier in the day. New York City Police Department Detective Richard Griffin testified for the prosecution that street-level sales often involve one to five bags of cocaine in units costing $20 each. Moreover, the defendant was found in possession of $20 at the time of his arrest. This evidence permitted the jury to reasonably infer that the defendant's intent was to sell his packets of cocaine in violation of Penal Law § 220.16 (1), even though the defendant was acquitted of actually selling cocaine to any particular person in violation of Penal Law § 220.39.

Concur—Mazzarelli, J.P., DeGrasse, Richter and Feinman, JJ.

The verdict was not against the weight of the evidence (People v Danielson, 9 NY3d 342 [2007]). There is no basis for disturbing the jury's credibility determinations. The evidence, including defendant's possession of 18 bags of cocaine hidden in his underwear, supported the inference that he intended to sell the drugs. That inference was also supported by expert testimony.

434*434 The court properly exercised its discretion when it admitted expert testimony concerning circumstances that indicate an intent to sell drugs (see People v Hicks, 2 NY3d 750 [2004]). The testimony was within the scope permitted under Hicks, and it did not express an opinion on the ultimate issue of defendant's intent (see People v Gray, 113 AD3d 561 [1st Dept 2014], lv denied 23 NY3d 963 [2014]; People v Peguero, 88 AD3d 589 [1st Dept 2011], lv denied 18 NY3d 927 [2012]).

We perceive no basis for reducing the sentence.

Henry J. Boitel for appellant.

Robert M. Morgenthau, District Attorney (David Rapaport and Robert M. Pitler of counsel), for respondent.

Chief Judge BREITEL and Judges JONES, FUCHSBERG and COOKE concur with Judge WACHTLER; Judges JASEN and GABRIELLI concur in result only in a concurring memorandum.

68*68WACHTLER, J.

The defendant has been convicted of criminal sale of a controlled substance in the first degree (Penal Law, § 220.43) for allegedly selling a pound and a half of heroin to two undercover police officers in Manhattan. At the trial the defendant denied selling the drugs and testified instead that he had simply acted as the agent of the buyers, by locating a seller and helping the officers complete the purchase. On this appeal the defendant claims that the trial court erred in charging the jury that he could only be considered an agent of the buyers if he acted "purely gratuitously" and that if he received "any benefit, however slight, from having participated in the transaction, he would not be an agent [of the buyers], but a seller." The prosecutor takes the position that the defendant was not prejudiced by the charge because the evidence, particularly the defendant's own admissions at the trial, conclusively shows that he was not acting solely as an agent of the buyers. The People also urge that the so-called "agency defense" has been interpreted too broadly by the Appellate Divisions and should either be abandoned or applied only to a narrow class of cases.

The indictment charging the defendant with selling heroin to two undercover police officers on May 30, 1974 was the result of a joint State and Federal narcotics investigation which had begun in January of that year.^[1]

69*69At the trial the undercover officers, Wright and Mingo, testified that they first met the defendant on January 24, 1974 at a travel agency, located on Park Row in Manhattan, which was owned and operated by the defendant. They introduced themselves by mentioning a mutual acquaintance, apparently involved in drug traffic, and during a half hour conversation indicated to the defendant that they were pimps and narcotics dealers who had a considerable amount of money available which they wished to invest in heroin. The defendant suggested that they purchase the drug in Hong Kong and smuggle it into the country by, for instance, using women couriers. When the officers asked the defendant if he could sell them some heroin he introduced them to Shark Fish, also known as Robert, who he said "can help you out."

Several days later Robert and an individual named Sonny sold the officers a pound and a half of heroin at $28,000 a pound. The officers apparently were only prepared to purchase a pound but the dealers insisted that they take the full amount, and the officers left owing $14,000. On January 30 Officer Mingo called the defendant to tell him the heroin was good. In this and later conversations the defendant reminded them of the balance due and told them that the sellers threatened to hold him responsible if the officers failed to pay. Eventually the officers paid the balance; part of it directly to the sellers and the remainder to the defendant. The defendant kept the initial payment of $1,000 but transmitted a later $4,000 payment to Sonny and Robert.

During these meetings the defendant told the officers that he had connections in Hong Kong and cited instances where heroin purchased in the Far East had been smuggled into the United States by ordinary mail, women couriers and merchant seamen. He told them that he had sent a man to Hong Kong to investigate.

Throughout March and April the defendant had several meetings with the officers in various Manhattan hotel rooms. At the first meeting, on March 5, he told them that in the past he had been involved with heroin on a part-time basis but having met them was prepared to arrange a big sale, as much as 50 or 100 pounds. He said that his man in Hong Kong had reported that he could arrange for them to purchase as much heroin as they wanted. He later introduced them to David Chan, the owner of an import-export business 70*70 who agreed to smuggle 50 to 100 pounds of heroin into the country for them.

It was finally arranged that the officers would fly to Hong Kong where they would meet an individual named Francisco. The defendant would accompany them provided they paid the expenses of his trip. Mingo and the defendant would remain in the hotel room while Wright went to inspect the heroin. If he found it acceptable Wright would call Mingo who would then transfer the money to the defendant who, in turn, would deliver it to an individual in another room. The heroin would then be delivered to Chan who would seal it in soy bean cans and ship it to the United States. Prior to leaving the officers gave the defendant $1,000 toward his expenses.

On April 17 the officers arrived in Hong Kong where they met the defendant and Chan and were later introduced to Francisco. The defendant told them that they could purchase 100 pounds and showed them a sample of brown rock heroin. After several days of negotiations the deal fell through when the officers refused to put up several thousand dollars as "front money" before being permitted to inspect the full amount offered for sale.

On May 5, having returned to New York, the officers called the defendant at his travel agency and told him they were still interested in buying heroin in smaller quantities. The defendant agreed to contact Robert or Sonny. In numerous telephone conversations between the defendant and the officers negotiations continued throughout the month of May. At one point, May 28, the defendant told the officers that Francisco had agreed to sell them heroin. The next day the defendant told them the sale would take place that night. When Mingo told him that they did not have the money on hand and that it was too late to go to the bank, the defendant complained that something was always going wrong either on "your side" or "this side."

On May 30 the defendant told the officers that he had a pound and a half of heroin and later arranged to meet them at First Avenue and 6th Street at 11 o'clock that evening. He said they should bring the money and also wanted to be reimbursed for his Hong Kong expenses.

When the officers drove to the scene they saw Robert sitting in a car nearby. They were talking to Robert when the defendant arrived and entered their car. He asked them "Why you play with Robert" and then said "It's not Robert doing, 71*71 it's me doing * * * I give you the stuff, you give me the money, everybody gives, you go and I go OK." The defendant asked them if they had the money including "my piece". They said they had $45,000 and "you get your piece out of that." After the officers showed him an attache case full of money the defendant told them to drive to another location where he got out of the car and asked Mingo to come with him.

The defendant and Mingo entered a nearby building and went to Francisco's apartment, which the defendant opened with a key. Inside the apartment the defendant led the officer to a garbage can, removed a package and gave it to the officer stating that it contained one and one-half pounds of brown rock heroin. As they left the building the defendant was arrested.

Most of the conversations with the defendant — on the telephone, in the Manhattan hotels and in the car prior to the sale on May 30 — had been recorded by the police and were played for the jury at the trial. Analysis of the package given to Officer Mingo confirmed the defendant's statement that it contained one and one-half pounds of heroin.

As noted the defendant testified that he had never sold heroin to the officers but had simply assisted them in their efforts to purchase the drug. He stated that when he first met them he suggested that they invest their money in certain legitimate businesses he planned, specifically a Harlem travel agency and a downtown nightclub. When they insisted on buying heroin he introduced them to a seller in order to cultivate their friendship. He did not participate in the January sale and he received no compensation for bringing buyer and seller together. He admitted that following that sale the officers gave him several thousand dollars and that he kept $1,000. However he claimed that this was a loan to cover his expenses for an upcoming business trip to London.

He also testified that his references to connections in Hong Kong and knowledge of heroin traffic and smuggling routes was part of a story he made up and told the officers to maintain their interest in him. When he was pressured to deliver, he led them on a wild-goose chase to Hong Kong. Upon their return, in order to redeem himself, he once again agreed to help them purchase heroin. Thus he negotiated with Francisco on their behalf and later brought them to the seller's apartment. However he denied handing Mingo the package of heroin and claimed that they left the apartment 72*72 when they found the door open and the apartment empty. It was not until they reached the street that the defendant realized that Mingo was carrying a package.

The defendant testified that he did not receive, and was not to receive any profit from this transaction. He was not working for Francisco and expected no compensation from him. He did expect the officers to reimburse him for his Hong Kong expenses, but he did not expect to share in the profits when they resold the heroin. In short, he claimed that he had simply acted out of friendship and with the hope that if he helped them purchase heroin they might later help him by investing in certain legitimate business ventures.

Under New York law a person may be found guilty of selling drugs when he gives them to another even though he has received nothing in return. Subdivision 1 of section 220.00 of the Penal Law states: "`Sell' means to sell, exchange, give or dispose of to another, or to offer or agree to do the same." Reading the statute literally, any passing of drugs from one person to another would constitute a sale. There are cases where it can be seen that this is what the Legislature intended. For instance, the pusher who introduces a potential addict to heroin, free of charge, is at least as culpable as the pusher who sells to one who is already addicted, and there is no reason why they should be treated differently under the law (cf. People v Broadie, 37 N.Y.2d 100, 113). There are also sophisticated drug transactions, particularly larger sales, where it may be difficult or impossible to prove there has been a sale or exchange in the ordinary sense because the transfer of the drugs and the money may occur at different times and places. In those cases too proof of the transfer of the drugs alone may suffice to prove the sale.

However there are certain cases where the defendant's mere delivery of the drugs does not appear to involve the same degree of culpability, or warrant the extreme penalties, associated with pushing drugs. For instance, when a friend of the defendant gives him money and asks him to purchase a small quantity of drugs the defendant's delivery of the drugs to the buyer could be considered a sale under a literal interpretation of the statute although, as a practical matter, he was simply a buyer who purchased the drugs on behalf of another.

The People urge that in such a case the Legislature intended the defendant to be considered a seller because intermediaries, like sellers, are an essential link in the illicit 73*73 drug traffic the statute was designed to eliminate. This, of course, could also be said of buyers, since without buyers there would be no sales. Nevertheless the buyer is not considered an accomplice of the seller (People v Pasquarello, 306 N.Y. 759), and in fact the buyer, despite his key position in the drug cycle, is generally treated more leniently than the seller. Buying drugs is not a crime in itself, although the buyer may be convicted of illegal possession (Penal Law, §§ 220.03, 220.06, 220.09, 220.16, 220.21). But the buyer's liability for possession of a narcotic drug is not as great as the seller's liability for making the sale (compare Penal Law, § 220.43, subd 1, and § 220.18, subd 1; § 220.41, subd 1, and § 220.09, subd 1; § 220.39, subd 1, and § 220.03) unless a large sale is involved (see Penal Law, § 220.43, subd 1; and § 220.21, subd 1).

Under similar statutory schemes, where the buyer's criminal liability differs from the seller's, it has been held that the intermediary who merely purchased the item for the buyer cannot be convicted of selling. The rule was first recognized at the turn of the century in cases involving the sale of alcohol where the statutory scheme prohibited the sale or furnishing of liquor but did not prohibit the purchase. Despite the broad wording of the statute it was held that the Legislature did not intend to punish, as a seller, one who had simply purchased a bottle at the buyer's request to accommodate him (see, e.g., State v Lynch, 81 Ohio St 336; Ann., 28 LRA [NS] 334; see, also, Ann., 24 LRA [NS] 268; People v McCrory, 222 NYS2d 112). The rule was later adopted by the Federal courts as applicable to illegal alcohol and drug transactions (United States v Sawyer, 210 F.2d 169; United States v Moses, 220 F.2d 166; but see United States v Pruitt, 487 F.2d 1241).

In this State it has long been held that "[o]ne who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics" (People v Branch, 13 AD2d 714; see, also, People v Buster, 286 App Div 1141; People v Lindsey, 12 N.Y.2d 958, People v Wright, 15 N.Y.2d 555; People v Bray, 15 N.Y.2d 637; People v Hollins, 19 N.Y.2d 864; People v Harris, 24 N.Y.2d 810; People v Hingerton, 26 N.Y.2d 790; People v Jenkins, 41 N.Y.2d 307; People v Carr, 41 N.Y.2d 847; People v Silverman, 23 AD2d 947; People v Fortes, 24 AD2d 428, app dsmd 17 N.Y.2d 583). The rule is essentially an interpretation of the statute defining the term "sell" (Penal Law, § 220.00, subd 1, formerly Penal Law, § 220.00, subd 5) and is designed to carry out the legislative intent under an elaborate and 74*74carefully drawn statutory scheme which, although broadly aimed at destroying traffic in drugs (see People v Broadie, 37 N.Y.2d 100, supra), imposes different liability on buyer and seller in all but the largest sales.

Since the State-wide acceptance of the agency principle, the statutory definition of "sell" has been revised as part of the over-all revision of the Penal Law effective in 1967 (L 1965, ch 1030). The wording however is essentially the same — the Legislature added "dispose of" to "sell, exchange or give" (compare former Penal Law, § 1751, subd 1) — and there is no indication that the Legislature intended to abandon the judicial construction which had been previously accepted throughout the State. Indeed following the revision of the Penal Law, and the later extensive amendments to the drug article (Penal Law, art 220, L 1973, ch 276; see People v Broadie, 37 N.Y.2d 100, supra) the courts have continued to apply and refine the agency concept in cases where the defendant acted as an intermediary between buyer and seller (see, e.g., People v Jenkins, 41 N.Y.2d 307, supra; People v Carr, 41 N.Y.2d 847, supra; People v Fuller, 34 AD2d 852; People v Pierce, 40 AD2d 581; People v Flanagan, 47 AD2d 959; People v Bostick, 51 AD2d 749; People v Munoz, 54 AD2d 844).

The so-called agency defense is not a complete defense. The defendant who has been a party to a drug sale is not relieved of all criminal responsibility simply because he was acting for the buyer. The agency concept is essentially a means of determining the extent of the intermediary's culpability, and thus the nature of his crime, under a statutory scheme which reserves the most severe penalties for the "tycoons of the trade" (see 1964 Commission Staff Notes, to the Revised Penal Law, art 225, now art 220). Evidence that the defendant was acting solely as an agent of the buyer is properly employed to determine whether he is guilty of possession, instead of sale (cf. People v Carr, 41 N.Y.2d 847, supra). The fact that the defendant was acting as a buyer is no defense to a possession charge when the Legislature has made buyers liable for the offense (People v Sierra, 45 N.Y.2d 56, decided herewith; People v Argibay, 45 N.Y.2d 45, decided herewith; People v Sheldon K., 26 N.Y.2d 949).

The determination as to whether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the jury to resolve on the circumstances of the particular case (see, e.g., People v Bray, 15 N.Y.2d 637,supra; 75*75People v Hingerton, 26 N.Y.2d 790, supra; People v Harris, 24 N.Y.2d 810, supra; People v Carr, 41 N.Y.2d 847, supra). Among other things the jury may consider the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction. But basically the jury must rely on its own common sense and experience to determine whether, under the circumstances, the defendant was in fact accommodating a friend or was simply a streetwise peddler attempting to avoid the penalties for sale. Of course the accommodation buyer is not uncommon and the average person, including the juror, should be able to perceive "the reality of the situation * * * without minutely detailed analysis" or instruction from the court (People v Yanik, 43 N.Y.2d 97, 100-101). There is no legal formula for determining the defendant's intent at the time of the drug transfer.

Thus the jury may find that the defendant who frequently or regularly purchased durgs for other persons from the same seller was allied with the seller. But even though the defendant may admit the other purchases the jury should not be precluded from finding, as a matter of fact, that he was in the habit of doing favors and acted solely on the buyer's behalf at the time of the sale (People v Carr, 41 N.Y.2d 847, supra; cf People v O'Keefe, 87 Misc 2d 739).

Similarly the fact that the defendant anticipated or received a profit from the sale may be sufficient to establish his intent to sell at the time of the transfer. But it is not unlikely that the buyer, who has obtained drugs with the aid of the defendant, will offer the defendant a share, a tip or reimbursement for expenses as a token of friendship or appreciation for the favor. This frequently happens when the buyer has purchased the drugs or marihuana for consumption and the defendant shares his tastes or is himself an addict. Of course receipt of any benefit, particularly a substantial reward promised in advance may be sufficient, as a matter of fact, to show that the defendant did not act solely to accommodate the buyer. But receipt of some incidental benefit, does not necessarily or even ordinarily alter the relationship between the parties, the nature of the transaction or the defendant's culpability.

Thus the court erred in charging the jury that they 76*76 could not find that the defendant acted as an agent of the buyer if he received any benefit however slight (People v Bostick, 51 AD2d 749, supra; People v Valentine, 55 AD2d 585; People v Rodriguez, 56 AD2d 545; People v Wright, 15 N.Y.2d 555; People v Fortes, 24 AD2d 428; cf. People v Bray, 15 N.Y.2d 637, supra; People v Robert W., 47 AD2d 793). The error however does not call for reversal because on this record the defendant was not entitled to an agency charge.

This is not a case where the defendant simply purchased and delivered a small quantity of drugs solely to accommodate a friend, without any commercial interest in promoting a sale (see, e.g., People v Argibay, 45 N.Y.2d 45, supra). Here the defendant admitted at trial that he had arranged a large drug sale and hoped to receive a substantial benefit in the form of business loans from the grateful buyers. The transaction in fact was completely commercial since the buyers themselves obviously did not intend to consume one and a half pounds of heroin, and indeed, the defendant admitted that they had informed him that they were drug dealers who intended to obtain the drugs for resale. Thus the defendant admitted that he was an intermediary between drug merchants and intended to profit, at least collaterally, from the delivery of the drugs and therefore from the commercial traffic in drugs generally. Realistically, by his own admissions, the defendant could only be considered one of the drug merchants or sellers for whom the Legislature has reserved the most severe penalties. On his own testimony, despite his protestations, it is concluded, as a matter of law, that on no reasonable view could a jury have found defendant to be merely an agent.^[2]

This then is one of those cases where it is clear that the Legislature intended the statute to apply literally. In view of the commercial quantity of the drugs involved and the defendant's clear intent to exploit the sale, the jury could only find that 77*77the defendant was a seller once they found, as they did, that he gave the drugs to the officers (Penal Law, § 220.00, subd 1).

Accordingly, the order of the Appellate Division should be affirmed.

JASEN and GABRIELLI, JJ. (concurring).

We concur in result only because we reject the agency defense, as is articulated and explained in the dissenting opinion by Judge GABRIELLI in People v Roche (45 N.Y.2d 78, decided herewith).

Order affirmed.

[1] The defendant was also indicted by a Federal Grand Jury. Following the trial on the State indictment the defendant was tried in Federal court and was convicted of conspiring to import and distribute heroin in violation of section 846 of title 21 of the US Code. That conviction has been affirmed (United States v Lam Lek Chong, 544 F.2d 58).

[2] We also note that in cases like this, involving large drug sales, the Legislature has not followed the general statutory scheme of imposing different criminal liabilities on buyer and seller. Under the new drug law (L 1973, ch 276) anyone who sells one or more ounces of a narcotic drug is guilty of an A-I felony (Penal Law, § 220.43, subd 1) and anyone who possesses two or more ounces of a narcotic drug is also guilty of an A-I felony (Penal Law, § 220.21, subd 1). Thus in the large drug sales — that is, any sale involving two or more ounces of narcotic drugs — the Legislature has imposed the same penalty on buyer and seller. The theory is that anyone possessing a large quantity of drugs intends to resell them and is a drug merchant who is just as culpable as the seller from whom he has purchased them (People v Broadie, 37 N.Y.2d 100, 113, supra).

424* Cindy F. Intschert, District Attorney, Watertown (Harmony A. Healy of counsel), and Karen F. McGee and Hannah E.C. Moore, New York Prosecutors Training Institute, Albany, for appellant-respondent.

Davison Law Office, PLLC, Canandaigua (Mark C. Davison of counsel), for respondent-appellant.

Chief Judge LIPPMAN and Judges GRAFFEO, READ, SMITH, PIGOTT and ABDUS-SALAAM concur.

425* OPINION OF THE COURT

RIVERA, J.

On these cross appeals arising from defendant's convictions for various drug-related crimes, we conclude that defendant was not within "close proximity" to the drugs found in his apartment once he exited the premises and entered his car, where no evidence suggests that he was in immediate flight from the premises in an attempt to escape arrest. Therefore, the trial court erroneously charged the jury on defendant's knowing criminal possession of drugs under the "drug factory" presumption of Penal Law § 220.25 (2). We further agree with the Appellate Division that, under the circumstances of this case, and in accordance with our decision in People v Martinez (83 NY2d 26, 426*426 29 [1993], cert denied 511 US 1137 [1994]) such error requires reversal of defendant's convictions for criminal possession of a controlled substance in the first and third degrees, and a new trial ordered on these counts of the indictment. Moreover, upon finding no basis to reverse defendant's convictions for criminal possession of marihuana in the second degree and two counts of criminally using drug paraphernalia in the second degree, we affirm the Appellate Division.

I.

Soon after defendant Stanley R. Kims, II was released on parole for a conviction unrelated to this appeal, Detective James McNitt, a member of the Metro Jefferson Drug Task Force (Task Force), received information from an informant that defendant was operating a drug "stash house"^[1] on LeRay Street in Watertown, New York. McNitt subsequently confirmed that defendant was leasing the ground floor apartment at the LeRay Street address and reported this to Patrick Glennon, defendant's parole officer.

Glennon decided to visit the LeRay Street residence that same day because defendant had previously reported to parole authorities that he was living with his family at a different Watertown address. Glennon told McNitt that he and several officers were going to LeRay Street to conduct a "house check" and asked McNitt to "stay in the area in case they needed any assistance." McNitt agreed. Unbeknownst to Glennon, McNitt took along several other members of the Task Force and placed the LeRay Street residence under surveillance while the parole officers conducted their investigation.

When the parole officers arrived they found defendant's vehicle parked in the driveway directly in front of the LeRay Street residence. They parked outside and after about an hour Glennon and another parole officer saw defendant and his cousin, Robert Sawyer, exit through the front door of the house and walk towards the vehicle. Events then moved quickly. Glennon called out to defendant. At some point defendant shifted his vehicle into reverse, but was unable to exit because by then the parole officers had parked their car behind him. Glennon observed defendant reach into the vehicle's console area, located between the driver and front passenger seats. The officers 427* then drew their guns, and yelled to defendant and Sawyer to put their hands up and exit the vehicle. The officers surrounded defendant and Sawyer, and were joined by two other parole officers who had been parked near the back of the residence.

After repeated demands by the officers to exit the vehicle, Sawyer finally unlocked the door, and the parole officers handcuffed, frisked and searched defendant and Sawyer. The officers found packages of cocaine on Sawyer and on the ground next to the passenger side door where Sawyer and defendant had been removed from the car. A subsequent search of the vehicle pursuant to a warrant led to the discovery of more cocaine in the console area.

Within minutes of defendant's arrest, McNitt and other members of the Task Force joined Glennon and the parole officers at the front of the residence. As people in the neighborhood began to gather around, defendant repeatedly yelled out to the crowd "Call Chino." McNitt asked defendant if there was anyone in the residence, but defendant looked away and failed to answer. Concerned about potential danger to the officers and the destruction of evidence, McNitt and several of the other officers conducted a protective sweep of the residence, which they entered using defendant's key. Inside, they found one person, Jeffrey Fineout, who was asleep on the living room couch. In response to their questions Fineout told the officers that the residence belonged to defendant.

As they continued the sweep, the officers walked towards the back of the apartment where they observed on the kitchen counter a clear bowl filled with what they subsequently confirmed were several ounces of cocaine. They also saw scales, a heat sealer, a blender covered in residue, a chemical agent called Inositol Powder used in illegal drug production, glassine envelopes and cookware covered in a white powder residue.

After the officers obtained and executed a search warrant for the apartment, they found two large trash bags containing approximately 3½ pounds of marihuana in the bedroom closet. In that same bedroom they found a copy of the signed lease with defendant's signature, a National Grid electric bill for the LeRay address in defendant's name, $24,000 in cash in a safe, and another $2,100 on a night stand. In the kitchen they found 6.8 ounces of cocaine in the cupboards and 3 ounces on the counter in open view.

Defendant was indicted on several drug-possession related counts. Prior to trial, he sought to suppress all of the drugs and 428* items found in the apartment for lack of probable cause. The court denied suppression finding the protective sweep to be a valid warrantless search. Defendant also sought to prevent submission of certain evidence of prior bad acts. After a Sandoval/Molineux hearing the court held that the People could submit proof of prior drug sales as probative of intent to sell, knowing, intentional and constructive possession, and the existence of a narcotics business operated by defendant. The court also held that the People could seek to admit first-hand knowledge testimony that defendant was a high-ranking member, or participant in a drug organization, as well as evidence that he was a member of a gang that operated a drug distribution business. However, the court prohibited hearsay testimony from the officers and the People's witnesses about defendant's reputed status as a gang member or drug dealer, and specifically barred the People from eliciting the words "gang" or "Crip" from law enforcement witnesses. Nevertheless, this prohibition was subject to the People establishing a proper foundation for a hearsay exception or exclusion and, if admitted, further subject to a limiting instruction to the jury.

At trial, the People presented physical evidence and testimony establishing defendant's involvement in the drug sale operation at the LeRay Street residence. Parole officers and Task Force members testified as to defendant's arrest, the protective sweep and the seizure of the drugs and drug paraphernalia found in the apartment and vehicle, contraband which was admitted into evidence. The People established that a few months prior to his arrest defendant had commenced work at a fast food establishment. The owner of the building testified that defendant signed a month-to-month lease in February, that he paid $650 monthly rent, and that in March, while she was considering selling the building for approximately $68,000, defendant expressed interest in purchasing the building, under an arrangement wherein he would supply a 30-50% deposit.

Three witnesses, including Sawyer, testified as to prior drug sales and defendant's alleged gang affiliation. Sawyer testified that on the day of the arrest, he went to the apartment to buy drugs from defendant. While inside the apartment, he gave defendant $50, sat on a couch in the living room and watched defendant enter the kitchen area, from which defendant emerged 15-20 minutes later, and handed Sawyer the cocaine. Sawyer also testified that defendant told him he was a member of a gang known as the Crips, and that Sawyer had seen defendant wear the Crips gang bandana.

429* The occupant of the upstairs apartment testified that on at least three occasions he had purchased drugs inside defendant's apartment, from Fineout, and that he had witnessed defendant coming and going from the residence. The upstairs occupant had also asked defendant about purchasing cocaine to establish his own selling business.

Another witness testified that he had known defendant for 15 years, and had purchased drugs from him in the past. He further testified that while he and defendant were incarcerated together, they talked about defendant's drug organization. He too stated that defendant told him he was a member of the Crips gang.

As relevant to this appeal, the judge charged the jury under two theories of criminal possession based on the defendant's lack of actual physical possession of the drugs. In accordance with Penal Law § 220.25 (2), for the criminal possession of a controlled substance in the first and third degree counts only, the court instructed the jurors that

"the presence of a narcotic drug or preparation in open view in a room under circumstances evincing an intent to unlawfully mix, compound, package or otherwise 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.

"What that means is that if the People have proven 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[,] that is a conscious objective or purpose[,] to unlawfully mix, compound, package or otherwise prepare the cocaine for sale, 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.

"Whether or not to draw that inference is for you to decide and will depend entirely on your evaluation of the evidence."

The judge also instructed the jury on constructive possession for all of the charges, informing the jurors that,

430* "a person has tangible property in his or her constructive possession when that person exercises a level of control over the area in which the property is found or over the person from whom the property is seized sufficient to give him or her the ability to use or dispose of the property."

With respect to the Molineux evidence, the judge gave a limiting instruction on the defendant's prior bad acts and alleged gang affiliation, informing the jurors that the evidence was not offered to establish a propensity or predisposition to commit the crimes charged, but rather as evidence of motive or intent, or to show the absence of a mistake, or to show a common plan or scheme, or for the purpose of identifying the defendant. The court further informed the jurors that if they found the evidence believable, they were permitted to consider it for this limited purpose.^[2]

The jury convicted defendant on all counts of the indictment, finding him guilty of criminal possession of a controlled substance in the first and third degrees (Penal Law §§ 220.21 [1]; 220.16[1]), criminal possession of marihuana in the second degree (Penal Law § 221.25), and two counts of criminally using drug paraphernalia in the second degree (Penal Law § 220.50 [2], [3]). The court sentenced defendant as a second felony offender to 16 years' incarceration followed by five years' post-release supervision on the criminal possession of a controlled substance in the first degree, 11 years' incarceration and three years' postrelease supervision on the criminal possession of a controlled substance in the third degree, three years' incarceration and two years' postrelease supervision on the criminal possession of marihuana in the second degree, and one year terms 431* each on the two counts of criminally using drug paraphernalia in the second degree, all to run concurrently.

On defendant's appeal the Appellate Division, Fourth Department, in a 4-1 decision, modified on the law, reversing the convictions on the counts of criminal possession of a controlled substance in the first and third degrees, ordering a new trial on those counts, and otherwise affirmed the convictions on the remaining counts (96 AD3d 1595 [2012]). The majority concluded that the trial court committed reversible error 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 were found, as required by the statute. The Appellate Division further concluded that the error was not harmless because there is no way to discern whether the jury relied on this charge, or the constructive possession instruction, in convicting defendant of criminal possession of a controlled substance in the first and third degrees. The majority rejected defendant's remaining arguments. One Justice dissented, in part, concluding that the trial evidence supported a determination that the apartment was used as a "drug factory operation," and that defendant was in close proximity to the cocaine when he was apprehended outside, in his vehicle.

A Judge of this Court granted the People and defendant leave to appeal (21 NY3d 913 [2013]). We now affirm the Appellate Division.

II.

A.

The People appeal the reversal and remittal for a new trial on the counts of the indictment for criminal possession of a controlled substance in the first and third degrees, arguing that the trial court properly instructed the jury under Penal Law § 220.25 (2). The People contend the evidence supports the charge because the defendant was apprehended outside the front door of the residence, and he was under surveillance from the moment he walked out of the building until his arrest minutes later. The People further argue that if there was error it was harmless because of the overwhelming evidence of defendant's guilt on the two criminal possession charges, and because the jury's guilty verdict on the marihuana and paraphernalia possession counts demonstrates that the jurors concluded defendant constructively possessed all of the drugs in the apartment.

432* The defendant responds that while the court properly charged the jury on constructive possession, the court should not have instructed the jury on the Penal Law § 220.25 (2) presumption because the latter applies only in cases where a defendant is caught on the premises where the drugs are found, and here defendant was arrested outside. He contends that the error was not harmless under our holding in People v Martinez (83 NY2d 26 [1993]), because there is no way of determining whether the jury convicted him based on the section 220.25(2) presumption charge, or the constructive possession charge.

We agree with the Appellate Division that the trial court erroneously charged the jury because defendant was not within close proximity to the drugs as required by section 220.25(2), and that, on this record, the error was not harmless and a new trial should be granted.

II.

B.

Penal Law § 220.25(2) states, in relevant part, that

"[t]he presence of a narcotic drug, narcotic preparation, marihuana 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" (Penal Law § 220.25[2]).

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 sale operation (People v Daniels, 37 NY2d 624, 630-631 [1975]). The presumption is rebuttable, and the jury may choose to reject its application under the facts (id. at 631).

This statutory presumption, referred to as the "drug factory" presumption (People v Martinez, 83 NY2d at 29), was intended to allow police in the field to identify potentially culpable individuals involved in a drug business, under circumstances 433* that demonstrate those individuals' participation in a drug operation (see Mem of St Commn of Investigation, Bill Jacket, L 1971, ch 1044; People v Rosado, 96 AD3d 547, 548 [1st Dept 2012], citing William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 220.25).^[3] The statute was designed "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" (Letter from St Commn of Investigation, Dec. 1, 1971, Bill Jacket, L 1971, ch 1044 at 6). "The occupants of such `factories,' who moments before were diluting or packaging the drugs, usually proclaim their innocence and disclaim ownership of, or any connection with, the materials spread before them. [The] [p]olice, under these circumstances, are often [left] uncertain as to whom to arrest" (Mem of St Commn of Investigation, Bill Jacket, L 1971, ch 1044 at 4). By including within the scope of the statute all persons based on physical closeness to the drugs, regardless of any individual's property interest in the location where the drugs are found, the drafters of the statute also sought to address the difficulty of prosecuting persons other than the owner or lessee of the premises (Mem of St Commn of Investigation at 4 ["In addition, with the present burden of proof of knowing possession of dangerous drugs on the people (sic), successful prosecution of persons other than the owner or lessee of such premises is extremely rare"]).

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. The statute anticipates an outer boundary beyond which the presumption does not apply, for "close proximity" defines a spatial element requiring that defendant's physical location is legally meaningful and suggestive of criminal involvement, but not so distant as to vitiate the experientially-based, real-world justification for presuming defendant has criminal possession.

434* The decisive consideration for a court determining whether a defendant is within "close proximity" is the distance between the defendant and the drugs. This determination is necessarily fact specific. Still, based on the text, the intent of the statute, and judicial construction of section 220.25(2), we glean certain general principles that guide a court's analysis.

The statute's requirement that the defendant is in close proximity to drugs in open view in a "room, other than a public place" supports the application of the presumption to persons who are physically present in the room where the drugs are found (see e.g. People v Coleman, 26 AD3d 773 [4th Dept 2006] [kitchen]; People v James, 266 AD2d 236 [2d Dept 1999] [motel room]; People v Plower, 176 AD2d 214 [1st Dept 1991] [living room]).

The presumption also may apply to a defendant apprehended on the premises, but outside of the room where the drugs are found. As long as the proximity requirement is satisfied, nothing in the text limits the statute's reach to persons caught in the room itself. However, as the case law establishes, the proximity determination requires careful consideration of the underlying facts related to the defendant's location on the premises when the drugs are found (see e.g. People v Rosado, 96 AD3d 547 [defendant fled to bathroom from bedroom where drugs were found]; People v Pressley, 294 AD2d 886 [4th Dept 2002] [defendant in room adjacent to room where drugs were found]; People v Riddick, 159 AD2d 596 [2d Dept 1990] [defendant was in hallway adjacent to room with drugs]; People v Garcia, 156 AD2d 710 [2d Dept 1989] [defendant in the bathroom, drugs in another room of the apartment]).

Structural barriers may be a factor in determining whether the defendant falls within the intended statutory coverage, but are not a per se bar (see e.g. People v Hayes, 175 AD2d 13 [1st Dept 1991] [defendant in a room separated from drugs by French doors]; People v Andrews, 216 AD2d 571 [2d Dept 1995] [defendant in loft above table with drugs]). As the drafters indicated, the statute is intended to apply to a defendant who hides "in closets, bathrooms or other convenient recesses" (Letter from St Commn of Investigation at 7; People v McCall, 137 AD2d 561, 562 [2d Dept 1988] [defendant discovered lying behind a bar 50 feet from contraband]). Thus, the legislative purpose is furthered by an interpretation that takes into account the layout of the premises.

435* Once a defendant has left the premises the justification for presuming knowing possession is less tenable. We have long recognized that "statutory presumptions are without validity unless the probabilities based on experience and proof justify them" (People v Reisman, 29 NY2d 278, 286 [1971], citing Leary v United States, 395 US 6, 32-36 [1969], and People v McCaleb, 25 NY2d 394, 400-404 [1969]). Where the facts and a defendant's location lead to a conclusion counterintuitive to "the probabilities to be drawn from common experience" (Daniels, 37 NY2d at 631), the presumption has no place.

Nevertheless, because the statute is grounded in the realities of police investigatory work into illegal drug sales, the presumption may apply even in cases where a defendant has exited the premises, when the defendant is caught in immediate flight, or apprehended fleeing the premises "upon the sudden appearance of the police" (Letter from St Commn of Investigation at 7; see e.g. People v Hogan, 118 AD3d 1263 [4th Dept 2014] [fleeing the room with drugs and paraphernalia]; People v Alvarez, 8 AD3d 58 [1st Dept 2004] [captured fleeing the apartment]; People v Snow, 225 AD2d 1031 [4th Dept 1996] [defendant admitted he had been in the dining room with the drugs but hid in the basement upon execution of the warrant]; People v Miranda, 220 AD2d 218 [1st Dept 1995] [captured fleeing the apartment]). We need not determine on this appeal how far from the premises defendant may be apprehended and still be subject to the presumption. We note, however, that the boundary in these cases is not limitless. Suffice it to say, that 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.

II.

C.

Applying these principles to the record before us, we conclude that defendant was not in close proximity to the drugs when they were found within the meaning of section 220.25(2). He 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[]" (Letter from St Commn of Investigation at 7). Nor was he found immediately outside the premises while trying to escape.

436* Here, 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, and the People have not argued, that defendant was in immediate flight from the premises when he walked out into the driveway. The officers entered the apartment several minutes after defendant had exited and was arrested, and only because defendant's yells to "Call Chino" made the officers apprehensive of potential danger and possible destruction of evidence, which led to their protective sweep of the apartment. Therefore, the Appellate Division correctly determined defendant was not within close proximity to the drugs, and this case was "unlike the scenario envisioned by the Legislature" (People v Kims, 96 AD3d 1595, 1596 [4th Dept 2012]).

The People argue the drug factory presumption applies because the defendant was apprehended immediately "steps away from the front door," and officers saw him exit just prior to his arrest. We are unpersuaded by the People's reasoning.

The People rely on People v Daniels (37 NY2d 624), claiming our decision in that case compels reversal here because, like in Daniels, officers observed defendant leave prior to his arrest outside the premises. Daniels, however, addressed the quantum of evidence required to properly charge the jury on corroboration of accomplice testimony in a drug possession case. We concluded that the evidence of contraband on the kitchen table sufficiently connected the defendants to the crime and, therefore, corroborated the accomplice testimony that he and the defendants were involved in a drug business (id. at 630-631). In reaching our conclusion that the court properly instructed the jury on corroboration, we stated that the court's instructions must be viewed in light of the entire record. In Daniels the evidence showed that two defendants were apprehended in the apartment with drugs in open view, and the third defendant, in whose apartment the drugs were found, was arrested after he was observed leaving the apartment. We stated that the presumption under Penal Law § 220.25(2) could apply in a proper case to convict defendants in close proximity to drugs, but, given the record,

"reliance need not be placed solely on the statutory presumption. The presence of the drugs and the defendants 437* in the apartment [was] a sufficient basis on which the jury could conclude that the accomplice was telling the truth when he testified that each of the defendants was involved in the drug business with him" (id. at 631 [emphasis added]).

Thus, our discussion of the presumption was not necessary to our decision (see id. at 632 [concurring opinion]). We simply recognized that the presumption might apply in a proper case, including one in which a defendant is in the apartment, but not the same room where the drugs are found.

Other cases cited by the People do not affect our analysis of the legal principles that apply to this appeal. The People either misread the facts, as in People v Kelly (261 AD2d 133 [1st Dept 1999]), where despite the People's opposite contention, the defendant was apprehended in the same room as where drugs were found (id. at 134 ["34 vials of crack cocaine . . . (were) found within (defendant's) reach in the apartment he shared with the seller"]), or the decisions in those cases do not compel a different outcome in this case (see e.g. People v Santiago, 243 AD2d 328 [1st Dept 1997] [court summarily concluded defendant was in "close proximity" to the drugs as required by section 220.25(2) and People need not prove defendant was in the same room]; People v Alvarez, 8 AD3d 58 [1st Dept 2004] [defendant jumped out of an apartment under circumstances evincing his attempted flight from the police]).

To the extent the People argue that the presumption applies so long as a defendant is under surveillance the entire time after the defendant exits the premises, we reject this interpretation of the statute because it lacks a definable end point. For example, we can discern no way to distinguish defendant's case from one in which the officers find a defendant down the street, or perhaps a mile away, from the house. Following the People's reasoning to its logical conclusion, so long as at all times a defendant is under surveillance, the presumption applies regardless of the defendant's distance from the premises. As such, the People's interpretation would lead to uncertainty, and fails to provide appropriate guidance as to how far an officer may pursue a defendant before reaching the outer expanse of the statute. We believe that this interpretation potentially extends the presumption to defendants and scenarios that are beyond the statute's intended coverage, and lends itself to abuse.

The People claim that even if the charge was erroneously given, the error was harmless. We held otherwise in People v 438* Martinez, and on this record we find no legal distinction between defendant's case and Martinez, thus we cannot say the error was harmless (83 NY2d 26; see People v Crimmins, 36 NY2d 230, 242 [1975]).

In Martinez, we concluded that where a jury returns a general verdict and it is impossible to determine if the verdict was based on an illegal charge, or on an alternative proper charge—in Martinez, as here, the alternative charge was on constructive possession—the error cannot be harmless (83 NY2d 26). If there is some evidence to which the jury could have applied the impermissible charge to reach an erroneous verdict, then a new trial should be ordered. Here, because the jury could have relied either on the evidence of constructive possession, or on the drug factory presumption to infer close proximity based on Sawyer's testimony and the police observations, it is impossible to determine which theory served as the basis for its verdict on the two counts of criminal possession of cocaine.

III.

Defendant asserts three grounds for reversal on his cross appeal relating to the marihuana and drug paraphernalia counts. He claims that the court admitted evidence of bad acts in violation of Molineux, the protective sweep evidence should be suppressed, and the prosecutor committed misconduct during summation. None of these challenges support reversal of the Appellate Division.

Defendant argues that the court committed error in permitting testimony about his alleged gang affiliation because such testimony lacks any connection to the charged crimes, and there was no testimony that any of the drugs recovered were related to gang activity. References to defendant's alleged gang membership and gang affiliation were improperly admitted, but the error was harmless.

"[E]vidence of a defendant's uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant's propensity to commit the crime charged" (People v Cass, 18 NY3d 553, 559 [2012] [citations omitted]; People v Molineux, 168 NY 264 [1901]). Evidence regarding gang activity can be admitted to provide necessary background, or when it is "inextricably interwoven" with the charged crimes, or to explain the relationships of the individuals involved (see People v Faccio, 33 AD3d 1041, 1042 [3d Dept 2006], lv denied 8 NY3d 845 [2007]).

439* Here, the references to gang activity were not relevant to any material issue. The People's theory centered on possession and on intent to sell. It is clear that the testimony about defendant's alleged gang affiliation would not have provided any relevant background information about how the drugs came to be located in his apartment. Similarly, there was no need to explain the defendant's relationship to the witnesses by referencing gang affiliation; the testimony clearly indicated their status as buyers as well as their respective relationships to the defendant. Finally, gang affiliation was not interwoven with the charges because there was no evidence that defendant was working with fellow members of his gang to distribute drugs.

However, there was overwhelming evidence of guilt, including testimony that defendant leased the apartment where the marihuana and drug paraphernalia were found, defendant had large amounts of cash without any apparent lawful source for the money, and defendant had sold drugs out of the apartment on prior occasions. Therefore, any error admitting testimony regarding gang affiliation was harmless (see generally Crimmins, 36 NY2d 230).

Defendant's other claims based on testimony of prior bad acts are meritless. Evidence of prior drug sales was probative of defendant's intent to sell, not merely possess the narcotics, and it was not an abuse of discretion to find that the probative value of the prior sales outweighed the danger of prejudice (see Cass, 18 NY3d at 560). Evidence of defendant's escape was probative of consciousness of guilt, and whether the defendant was seeking to escape from being taken into custody on a parole violation goes to the weight of the evidence not its admissibility (see People v Yazum, 13 NY2d 302, 304 [1963]; People v Bennett, 79 NY2d 464 [1992]). The court also gave appropriate limiting instructions as to this evidence (see e.g. People v Rivers, 18 NY3d 222, 226 [2011] [admittance of improper testimony minimized by curative instruction]; People v Giles, 11 NY3d 495, 500 [2008] [new trial ordered where trial court erred by failing to issue a limiting instruction to cure the potential prejudicial effect of the evidence of the uncharged crimes]).

The defendant's claim as to the trial court's refusal to suppress evidence seized from his apartment subsequent to the protective sweep presents a mixed question of law and fact. Our review is limited to whether there is record support for the determinations of the court below, and "unless there is no view of the evidence that would support that determination, we are 440*440 bound by the suppression court's finding" (People v Wheeler, 2 NY3d 370, 373 [2004]). McNitt's testimony that when defendant yelled out "Call Chino," he believed the officers might be in danger and evidence might be destroyed, supports the finding that exigent circumstances existed (see Maryland v Buie, 494 US 325 [1990]).

Finally, the defendant's contention that the People's summation constituted prosecutorial misconduct is unpreserved for review since defendant failed to object during the summation (People v Utley, 45 NY2d 908 [1978]; People v Patterson, 121 AD2d 406 [2d Dept 1986], lv denied 68 NY2d 759 [1986]).

IV.

The Appellate Division properly concluded that defendant was not within close proximity to the drugs found in the apartment within the meaning of Penal Law § 220.25(2), and that defendant's challenges to his convictions otherwise are without merit or unpreserved. Therefore, the order of the Appellate Division should be affirmed.

Order affirmed.

[1] At trial, McNitt defined a "stash house" as a place to keep drugs and money, and to package drugs for sale.

[2] The trial court's charge to the jury stated,

"There is evidence in this case on dates other than April 12th, 2010 the defendant may have sold or possessed controlled substances or other illegal substances, and that he was the subject of a drug investigation in the past, or may have been a member of a gang, or may have engaged in conduct in an attempt to bribe, intimidate or injure witnesses, or may have fled police custody.

"That evidence was not offered and must not be considered for the purpose of proving that the defendant had a propensity or a predisposition to commit the crimes charged in this case. It was offered as evidence for your consideration on the questions of motive or intent, or to show the absence of a mistake or to show a common plan or scheme or for the purpose of identifying the defendant. If you find the evidence believable, you may consider it for that limited purpose and for none other." 

[3] Defendant refers to the presumption allowed under Penal Law § 220.25 (2) as the "room presumption." As we discuss, the presumption is intended to apply to participants in a drug sale operation, and, in a proper case, may apply to persons caught or arrested outside of the room where the drugs are found. Therefore, the more accurate reference, and the one we adopt, is the "drug factory" presumption.

102* Stanley R. Kaplan of counsel (Joseph N. Ferdenzi on the brief; Robert T. Johnson, District Attorney, Bronx County, attorney), for appellant.

Rosemary Herbert of counsel (Richard M. Greenberg, Office of the Appellate Defender, attorney), for respondent.

MAZZARELLI, J.P., SAXE, ROSENBERGER and LERNER, JJ., concur.

OPINION OF THE COURT

SULLIVAN, J.

This appeal, from the dismissal of an indictment for legal insufficiency, presents the issue of whether the People's evidence before the grand jury established defendant's possession of drugs, drug paraphernalia, a gun and ammunition recovered from an apartment or, as the motion court held, merely his presence in that apartment.

A transcript of the grand jury proceedings reveals the following. On July 11, 2001, at approximately 1:45 P.M., Sergeant Gibson, accompanied by Police Officers LaMazza and Lisa, responded to a radio run of shots being fired at apartment 10B, 30 Richmond Plaza in the Bronx. The sergeant knocked on the door several times without a response, although he could hear "footsteps and scuffling inside of the apartment." A woman inside the apartment shouted, "hold on" several times. Finally, codefendant Deborah Barksdale, who resided in the apartment, opened the door, partially nude, with a towel draped around her. The officers entered the apartment and asked if anyone else was there. Barksdale indicated that her cousin was inside. At that point, defendant, pulling up his trousers, barefoot, sockless and shirtless, emerged from the left rear bedroom.

In searching the apartment, described as "very messy * * * very dirty, [and] very unkept [sic]," to see if anyone else was present, the sergeant entered the bedroom, admittedly Barksdale's, from which defendant exited and observed a dresser 103* with drawers with missing "faces." Inside one of the drawers, in open view, the sergeant observed a plate on which sat an empty plastic bag and another bag containing a substance that appeared to be cocaine. The bag's contents, later tested, contained cocaine and weighed in excess of nine ounces. Officer Lisa, directed into the bedroom by Sergeant Gibson, also recovered a bag containing 19 black-topped vials of crack cocaine (10 of the vials were analyzed and tested positive for cocaine) from under the mattress. Officer Lisa also recovered a Bacardi crack pipe, crack/cocaine residue mirror, razor blade, glass/crack pipe and two scrapers, all containing what appeared to be crack cocaine residue, from the bedroom. One of the pipes tested positive for cocaine. Officer Lisa also retrieved a .45 caliber Ruger handgun, in "fair" condition, loaded with four rounds of ammunition, from a handbag hanging off the doorknob of the door to the bedroom. As confirmed by photographs of the bedroom, the gun was visible in the bag, which was opened.

Officer LaMazza noticed a plate in the kitchen with a white powdery substance that appeared to be cocaine and a razor blade on it. The white powder tested positive for cocaine as did the residue on the razor blade. Drug paraphernalia, consisting of a white jar with a lid, 32 green tops, 47 blue tops, 81 crack vials and 149 Ziploc bags, was also recovered from the kitchen and vouchered. The officers later discovered that the apartment was neither defendant's home nor place of business.

Defendant appeared before the grand jury, testifying that on the day in question he went to the apartment to purchase drugs, as he did regularly. After making his purchase, two vials of crack cocaine for $10, he crushed the crack cocaine, mixed it with marijuana, rolled it up in paper and smoked it in the living room. About 20 to 30 minutes later, the police arrived. Any drugs found in the apartment did not belong to him. He had never been in either of the bedrooms in the apartment and was wearing a pair of shorts and a shirt the entire time. He had not engaged in sex with Ms. Barksdale. He "wasn't paying attention to the kitchen" and thus did not see the razor blade or drugs recovered there, although, if he looked, he could see into the kitchen.

The People charged the grand jury on constructive possession but not the drug factory presumption under Penal Law § 220.25 (2). In dismissing the indictment, the court held that the People had failed to establish the element of dominion and control, finding a lack of any evidence that defendant "had 104* control over Barksdale's bedroom, the apartment or Barksdale" or that he assisted her in the possession of the contraband. According to the motion court, defendant's only act "was being present in the bedroom of the apartment naked and then coming into the hallway putting on his pants." Since we find that in so concluding the motion court failed to give the People's evidence the benefit of every reasonable inference, we reverse.

"Legally sufficient evidence" is defined in CPL 70.10 (1) as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof." With respect to an indictment (see CPL 190.65 [1]), the proper standard for reviewing the sufficiency of the evidence is whether, when "viewed in the light most favorable to the People, if unexplained and uncontradicted, [it] would be sufficient to warrant conviction by a trial jury" (People v Manini, 79 NY2d 561, 568-569). In assessing sufficiency when the evidence before the grand jury is wholly circumstantial, a reviewing court's inquiry is limited to "whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes" (People v Deegan, 69 NY2d 976, 979). "That other, innocent inferences could possibly be drawn from the facts is irrelevant * * * as long as the Grand Jury could rationally have drawn the guilty inference" (id.).

In considering the sufficiency of grand jury evidence, a reviewing court "may neither resolve factual questions in anticipation of the task properly left for trial * * * nor usurp the role of the Grand Jury by substituting its own inferences for those the Grand Jury has drawn" (People v Perez, 269 AD2d 321, 322, lv denied 95 NY2d 801, quoting People v Ballou, 121 AD2d 861, 862, lv denied 68 NY2d 809). A reviewing court may not examine the adequacy of the proof to establish reasonable cause, a determination that involves the weight or quality of the proof (People v Reyes, 75 NY2d 590, 593; see People v Jennings, 69 NY2d 103, 115). "[A]ll questions as to the quality or weight of the proof should be deferred" (People v Jennings, supra at 115).

The motion court dismissed the indictment because of its view that all that the evidence showed was defendant's presence in the apartment. From that, the court concluded that the People had not shown that defendant had constructive possession of the seized evidence or that he had acted as Barksdale's accomplice in possessing them. With respect to constructive possession, "the rule has long been that to support a charge 105* that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised `dominion or control' over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized" (People v Manini, supra, 79 NY2d 561, 573; see Penal Law § 10.00 [8]). Proof of constructive possession may be shown circumstantially (People v Torres, 68 NY2d 677). That a defendant neither owns nor leases the area where the contraband is found does not preclude a finding of constructive possession since possession may be joint (People v Tirado, 38 NY2d 955; People v Bundy, 235 AD2d 334, 337,affd 90 NY2d 918 ["proof of defendant's exercise of dominion and control over the contraband was not precluded by proof that co-defendant and his brother also participated in control over the apartment and its contents"]).

Here, defendant was not merely present. He had been in a private room, the bedroom, of an apartment to which he had gone, ostensibly, according to his account, to purchase drugs. While in the bedroom of that apartment, he had been in close proximity to drugs plainly exposed in an open drawer, visible drug paraphernalia and a loaded gun in an open bag. It is sufficient that the contraband was readily accessible and available. And, although the "drug factory" presumption (see Penal Law § 220.25 [2]) was not charged, clearly defendant had free access to an apartment, with its open display of drugs and drug paraphernalia, that was obviously used for such purpose.

In affirming this Court's determination of sufficiency with respect to the defendant's dominion and control over contraband, the Court of Appeals, in People v Bundy (90 NY2d, supra at 920), held that "a reasonable jury could conclude that only trusted members of the [drug] operation would be permitted to enter an apartment containing a large cache of drugs, money and weapons in plain view" (see People v Collado, 267 AD2d 122, lv denied 94 NY2d 917; People v Abreu, 261 AD2d 297,lv denied 93 NY2d 1013; People v Doleo, 261 AD2d 194, lv denied 93 NY2d 1017). Significantly, Bundy and its progeny all involved a review of evidence after trial. The standard of proof required for a grand jury indictment is, of course, less than that required for trial (see People v Jennings, supra, 69 NY2d at 115; People v Warner-Lambert Co., 51 NY2d 295, 299, cert denied 450 US 1031).

In the circumstances presented, it strains credulity that defendant would not have been aware of the contraband in plain view in the bedroom. And, while defendant denied being in the 106* bedroom, he testified that he could see the kitchen from his position. Moreover, that defendant was charged with acting in concert with Barksdale provides an independent basis to sustain the sufficiency of the grand jury presentation. Complicity, as with any other element of a crime, can be shown circumstantially (see People v Rossey, 89 NY2d 970, 971-972). Defendant's presence in a private area of the apartment, the state of undress of both defendant and Barksdale, and defendant's admitted use of drugs in the apartment are factors from which an inference may be drawn that defendant was more than a mere visitor.

In our view, sufficient evidence was adduced before the grand jury to sustain the indictment. While it may be that the People will have a long road to travel to convince a petit jury of defendant's guilt, our inquiry is limited to legal sufficiency. It is not the function of a reviewing court to "examine the adequacy of the proof to establish reasonable cause `since that inquiry is exclusively the province of the [g]rand [j]ury'" (People v Cedeno, 252 AD2d 307, 310, lv dismissed 93 NY2d 1015, quoting People v Colon, 137 AD2d 440, 441).

Accordingly, the order of the Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), entered December 4, 2001, dismissing an indictment charging defendant with criminal possession of a controlled substance in the first, third and seventh degrees, criminal possession of a weapon in the fourth degree, criminally using drug paraphernalia in the second degree and unlawful possession of pistol or revolver ammunition, should be reversed, on the law, the motion denied, the indictment reinstated and the matter remanded for further proceedings.

Order, Supreme Court, Bronx County, entered December 4, 2001, reversed, on the law, the motion denied, the indictment reinstated and the matter remanded for further proceedings.