text:
    [24 NE3d 573, 999 NYS2d 337]
    The People of the State of New York, Appellant-Respondent, v Stanley R. Kims, II, Respondent-Appellant.
    Argued September 11, 2014;
    decided October 23, 2014

      POINTS OF COUNSEL

      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.
    I. The trial court did not err in instructing the jury as to the permissive “drug factory presumption” authorized by Penal Law § 220.25 (2). (People v Daniels, 37 NY2d 624; People v Hayes, 175 AD2d 13; People v Coleman, 26 AD3d 773; People v Miranda, 220 AD2d 218; People v Maldonado, 189 AD2d 737; People v Riddick, 159 AD2d 596; People v Edwards, 23 AD3d 1140; People v Rosado, 96 AD3d 547; People v Alvarez, 8 AD3d 58; People v Kelly, 261 AD2d 133.) II. Even if the trial court erred in charging the “drug factory presumption,” the error should be deemed harmless in light of the overwhelming evidence of defendant’s guilt of criminal possession of the cocaine charged by the top two counts of the indictment. (People v Crimmins, 36 NY2d 230; People v Martinez, 83 NY2d 26, 511 US 1137; People v Giordano, 87 NY2d 441; People v Becoats, 17 NY3d 643.)

      Davison Law Office, PLLC, Canandaigua (Mark C. Davison of counsel), for respondent-appellant.
    I. The trial court’s error in instructing the jury on the room presumption, when Mr. Kims was not inside the premises where the drugs were found, required reversal and a new trial. (People v Martinez, 83 NY2d 26, 511 US 1137; People v Negron, 91 NY2d 788; People v Pearson, 75 NY2d 1001; People v Tejeda, 73 NY2d 958; People v Diaz, 108 Misc 2d 213; People v Alvarez, 8 AD3d 58, 3 NY3d 670; People v Uribe, 113 Misc 2d 207; People v Fineout, 96 AD3d 1601, 19 NY3d 1025; People v Kelly, 261 AD 2d 133, 94 NY2d 824; People v Santiago, 243 AD2d 328, 91 NY2d 879.) II. The trial court erred in its Molineux rulings, and thereby denied Mr. Kims his right to a fair trial. (People v Scarola, 71 NY2d 769; People v Molineux, 168 NY 264; People v Alvino, 71 NY2d 233; People v Resek, 3 NY3d 385; People v Hudy, 73 NY2d 40; People v Santarelli, 49 NY2d 241; People v Ventimiglia, 52 NY2d 350; People v Arafet, 13 NY3d 460; People v Bradley, 20 NY3d 128; People v Acevedo, 84 AD3d 1390.) III. Evidence found inside the residence on LeRay Street should have been suppressed because it was seized during a warrantless “protective sweep” by police. (People v Bost, 264 AD2d 425; Maryland v Buie, 494 US 325; People v Wheeler, 2 NY3d 370; People v Harper, 100 AD3d 772; People v Boyland, 79 AD3d 1658, 20 NY3d 879; People v McAllister, 35 AD3d 300, 8 NY3d 925; People v Clements, 37 NY2d 675, cert denied sub nom. Metzger v New York, 425 US 911; People v Coles, 105 AD3d 1360; People v Knapp, 52 NY2d 689; People v Kelly, 261 AD2d 133, 94 NY2d 824.) IV The conviction must be set aside and a new trial granted because of prosecutorial misconduct. (People v McClary, 85 AD3d 1622; People v Bryant, 77 AD2d 603; People v Jackson, 40 AD2d 1006; People v Acevedo, 84 AD3d 1390; People v Stewart, 92 AD2d 226; People v Polk, 84 AD2d 943; People v Gadsden, 80 AD2d 508; People v McMillan, 66 AD2d 830; People v Burke, 170 AD2d 1021, 77 NY2d 959; People v Fisher, 18 NY3d 964.)
   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, 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.

L

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” on LeRay Street in Water-town, 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 Glen-non 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 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 3V2 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 Le-Ray 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 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.

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, hut 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,

“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.

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 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.

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.

IL

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 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). 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.

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 Flower, 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.

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.

IL

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.

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 de fendants 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 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]).

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 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.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Abdus-Salaam concur.

Order affirmed.

      . At trial, McNitt defined a “stash house” as a place to keep drugs and money, and to package drugs for sale.

      . 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.”

      . 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.


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [24 NE3d 586, 999 NYS2d 350]
    The People of the State of New York, Respondent, v Terrell Allen, Appellant.
    Argued October 23, 2014;
    decided November 25, 2014

      POINTS OF COUNSEL

      Steven Banks, The Legal Aid Society, Criminal Appeals Bureau, New York City (Angie Louie of counsel), for appellant.
    I. The count of attempted murder was rendered duplicitous where the indictment charged attempted murder when appellant fired at Kevin Macklin and missed seconds before firing again and killing him, but evidence at trial showed that there was an earlier incident when appellant pointed a gun at Macklin but no shot was fired, and this mode of proceedings error does not need to be preserved for appeal. (People v Keindl, 68 NY2d 410; People v Alonzo, 16 NY3d 267; People v Bauman, 12 NY3d 152; People v Hanley, 20 NY3d 601; People v Becoats, 17 NY3d 643; People v Parilla, 8 NY3d 654; People v Sinha, 84 AD3d 35; People v Nash, 77 AD3d 687; People v Hayes, 104 AD3d 1050; People v Jones, 165 AD2d 103.) II. The introduction of the lineup in violation of appellant’s right to counsel was not harmless beyond a reasonable doubt where the identification was made by the People’s lead witness, and where the other witnesses had strong motives to lie. (People v Coates, 74 NY2d 244; People v Crimmins, 36 NY2d 230; People v Smith, 22 AD3d 510; People v Polhill, 102 AD3d 988; Chapman v California, 386 US 18; Fahy v Connecticut, 375 US 85; People v Carracedo, 89 NY2d 1059; People v Carpenito, 80 NY2d 65; Wray v Johnson, 202 F3d 515; People v Burts, 78 NY2d 20.) III. The defense was improperly limited in establishing that the People’s main witness, Judith Macklin, told police that there was one shooter and that the perpetrator fit the description of codefendant Waquan Welds, not appellant. (Douglas v Alabama, 380 US 415; Crawford v Washington, 541 US 36; People v Hults, 76 NY2d 190; People v Spencer, 20 NY3d 954; People v Carroll, 95 NY2d 375; People v Ranghelle, 69 NY2d 56; People v Mullings, 83 AD3d 871; People v Steward, 54 AD3d 880; Rosario v Kuhlman, 839 F2d 918; People v Schwartzman, 24 NY2d 241.)

      Richard A. Brown, District Attorney, Kew Gardens (Nancy Fitzpatrick Talcott and John M. Castellano of counsel), for respondent.
    I. The count of attempted murder was not duplicitous and the Appellate Division properly rejected defendant’s unpreserved claim to the contrary. (People v Lopez, 71 NY2d 662; People v Michael, 48 NY2d 1; People v Jackson, 196 NY 357; People v Gray, 86 NY2d 10; People v Kelly, 5 NY3d 116; People v Voliton, 83 NY2d 192; People v Middleton, 54 NY2d 42; People v Patterson, 39 NY2d 288; Brown v Greiner, 409 F3d 523; People v Ahmed, 66 NY2d 307.) II. Defendant was not denied his right to counsel at the lineup. In any event, error, if any, in the admission of such evidence was harmless. (People v LaFontaine, 92 NY2d 470; People v Concepcion, 17 NY3d 192; People v Ingram, 18 NY3d 948; People v Wheeler, 2 NY3d 370; People v Pacquette, 17 NY3d 87; People v Sparber, 10 NY3d 457; People v Carracedo, 89 NY2d 1059; People v Prochilo, 41 NY2d 759; Kirby v Illinois, 406 US 682; People v Wilson, 89 NY2d 754.) III. The Appellate Division correctly affirmed the trial court’s exclusion of impeachment evidence which could not be attributed to the witness sought to be impeached and which did not state what defendant alleged. (Taylor v Illinois, 484 US 400; Chambers v Mississippi, 410 US 284; Rock v Arkansas, 483 US 44; People v Aska, 91 NY2d 979; People v Miller, 39 NY2d 543; People v Hudy, 73 NY2d 40; People v Petty, 7 NY3d 277; People v Corby, 6 NY3d 231; People v Davis, 43 NY2d 17; Delaware v Van Arsdall, 475 US 673.)
   OPINION OF THE COURT

Chief Judge Lippman.

The primary issue presented by this appeal is whether a duplicity argument based on trial evidence must be preserved for appeal where the count is not duplicitous on the face of the indictment. We hold that such error must be preserved, and find that none of the other issues raised by defendant warrant reversal.

On June 22, 2008, shortly before 1:30 a.m., defendant attempted to shoot the victim while he was in the street, but the gun did not fire. Approximately 10 minutes later, by the stoop in front of the victim’s house, defendant fired two shots, one missing and one hitting the victim in the head and killing him.

The victim’s wife witnessed some of the events leading up to the shooting, and on the night of the murder, spoke to police officers about what she saw. She mentioned to Detective Mark Lobel the name of the codefendant in this case (Welds), who told police that defendant had fired the gun. Three days later, defendant was arrested by police, including Detective Lobel, in New Jersey, after he attempted to avoid arrest by hiding in an attic. Police brought defendant to the 113th precinct in Queens. Detective Lobel conducted a lineup at the station, and the victim’s wife identified defendant as the shooter. Ballistics evidence showed that the bullet recovered at the scene and the bullet recovered from the victim’s body were fired from the same gun. Defendant and Welds were charged in a single indictment. Welds’ case was ultimately severed from defendant’s. Welds stood trial first and was convicted by a jury of murder in the second degree. Facing a sentence of up to 15 years to life, Welds agreed to testify against defendant in exchange for a promise of leniency. Welds was sentenced to 7/2 years to life.

Defendant was charged with one count of second-degree murder and one count of attempted second-degree murder among other charges. The indictment charged defendant and codefendant with:

“murder in the second degree, committed as follows: The defendants, on or about June 22, 2008, in the County of Queens, acting in concert with each other and with the intent to cause the death of Kevin Macklin, caused the death of Kevin Macklin, by luring him off the front steps of his home and shooting him with a loaded firearm.”

Defendant, alone, was charged with:

“attempted murder in the second degree, committed as follows: The defendant, on or about June 22, 2008, in the County of Queens[,] and with the intent to cause the death of Kevin Macklin, attempted to cause the death of Kevin Macklin by discharging a loaded firearm at and in his direction.”

Defendant filed a request for a bill of particulars, seeking specification of the substance of each aspect of defendant’s conduct encompassed by each charge, the distinctions in conduct between the counts of the indictment, and the exact date, time and location of the alleged crimes charged. Defendant also filed an omnibus motion, which challenged the indictment as multiplicitous, arguing:

“[I]t appears the Counts 1 and 2 of the indictment charging [m]urder in the [s]econd [d]egree (intentional) and [attempted [m]urder in the [s]econd [d]egree are multiplicitous counts as . . . the defendant is charged [with] attempting to cause the death of Kevin Macklin by discharging a loaded firearm at and in his direction, and . . . the defendant is charged with luring him off the front steps of his home and shooting him with a loaded firearm, causing his death. It appears that these counts encompass either the same conduct or a single continuing offense and should not be separate counts in this indictment.”

In response, the People stated that the substance of defendant’s conduct was that

“on June 22, 2008, at approximately 01:35 a.m., in the vicinity of 112-02 148[th] Street, the defendant^] acting in concert with co-defendant . . . pointed a pistol at Kevin Macklin[,] and attempted to shoot Kevin Macklin [,] and thereafter did fire at Kevin Macklin, striking him in the head, thereby causing his death.”

After a Wade hearing, Supreme Court denied defendant’s motion to suppress identification testimony, which had claimed, inter alia, that the identification was made in a lineup that was conducted in violation of defendant’s right to counsel. There was conflicting testimony from defendant and the police officers as to whether or not defendant had requested the presence of his attorney at the lineup. The court concluded that “even if defendant Allen in fact had told detectives prior to the lineup that he wanted his lawyer, they were under no obligation to contact or provide counsel at the lineup.”

During opening arguments, the People raised both incidents of defendant attempting to shoot the victim (both the gun not firing, and the missed shot in front of the house 10 minutes later), applying the term “attempted murder” only to the earlier one. Defendant made no objection. During the testimony of the People’s witnesses, the prosecution asked questions about both incidents. The People presented three eyewitnesses who testified about the events that occurred that night, ballistics evidence, and an inculpatory statement made by defendant to one of the witnesses an hour after the shooting. The People also presented evidence of defendant’s attempts to avoid apprehension and arrest by the police. During trial, the court refused to allow defendant to introduce the extrinsic evidence, consisting of several police reports of the incident, to impeach the credibility of one of the People’s witnesses on the stand. According to the officers who wrote these reports, they were based on secondhand information since neither of the officers had spoken to the witness directly.

In the closing argument, the prosecutor did not clarify which incident formed the basis of the attempted murder count. The court also did not specify which conduct the attempted murder charge was based upon, stating:

“[U]nder the second count the People are required to prove beyond a reasonable doubt two elements: One, on or about June 22, 2008 in the County of Queens this defendant acting in concert intended to commit the crime of murder in the second degree. I have given you those elements. And, two, the defendant engaged in conduct which tended to effect the commission of that crime.”

Defendant did not object to the charge.

Defendant was convicted on all counts, and sentenced to 25 years to life for murder, 25 years for attempted murder, 15 years for each of two criminal possession of a weapon counts, and one year for menacing. The attempted murder sentence was imposed consecutively to the other counts.

The Appellate Division unanimously modified the judgment of conviction, as a matter of discretion in the interest of justice, by directing that all the terms of imprisonment run concurrently with each other, and as so modified, affirmed, holding that: (1) although the trial court erred in denying defendant’s motion to suppress the lineup identification, the error was harmless; (2) the trial court properly refused to allow defendant to introduce extrinsic evidence on a collateral matter to impeach the credibility of a witness; and (3) the duplicity argument was unpreserved (105 AD3d 754 [2d Dept 2013]).

“An indictment is duplicitous when a single count charges more than one offense” (People v Alonzo, 16 NY3d 267, 269 [2011]). Defendant argues that the count of the indictment charging him with attempted murder was rendered duplicitous due to events that unfolded during the course of the trial.

The indictment in this case appears to cite the incident that occurred in front of the victim’s house (the two shots fired within seconds of each other) as the basis for the attempted murder count against defendant. The bill of particulars, which says that “defendant. . . pointed a pistol. . . and attempted to shoot . . . and thereafter . . . fire[d],” may be read as tying the attempted murder charge to the earlier incident (the misfire), but it does not eliminate the ambiguity. At trial, beginning with the opening statement, the People presented to the jury two separate incidents in which a gun was pointed at the victim, and defendant pulled the trigger. Neither the People, in their closing argument, nor the court, in its instructions to the jury, clarified the basis of the attempted murder count. Thus defendant contends that the jury verdict on the attempted murder count could have represented either a finding as to the first incident, the second incident, or a combination of the two.

Defendant argues that preservation is unnecessary where a count is not duplicitous on its face, but where it is the evidence adduced at trial that renders a count duplicitous, contending that the defect constitutes a mode of proceedings error.

In People v Becoats (17 NY3d 643 [2011]), defendant contended that the indictment was facially duplicitous. This Court held that such issues must be preserved at trial. We reasoned:

“To allow an unpreserved claim of duplicitousness to be raised on appeal would open the door to abuse. Defendants accused of multiple offenses may not much care how many counts they face, or may prefer to face one count (and thus one conviction) rather than several. Under the rule defendants here seek, it would be possible for them to make that choice at trial by letting a duplicitous indictment stand without objection, and make the opposite choice on appeal; they might thus obtain a new trial on the basis of an error they consciously decided not to challenge because they thought it insignificant, or welcomed it. To expand the definition of ‘mode of proceedings’ error too freely would create many such anomalous results” (Becoats, 17 NY3d at 651).

Here, defendant asserts that the charge for attempted murder did not become arguably duplicitous until the trial evidence suggested that there had been another incident involving defendant and the victim.

The First and Second Departments have held that where it is claimed that the trial evidence has rendered a count duplicitous, the issue must be preserved for review (see People v Sinha, 84 AD3d 35, 43-44 [1st Dept 2011], affd 19 NY3d 932 [2012]; People v Nash, 77 AD3d 687, 688 [2d Dept 2010]). The Fourth Department, however, has held that duplicity created by trial evidence violates a defendant’s right to be tried and convicted only of the crimes and theories charged in the indictment, which is a fundamental and non-waivable right, and that such error also violates a defendant’s right under CPL 310.80 to a unanimous verdict, and that preservation is unnecessary (see People v Montgomery, 104 AD3d 1291 [4th Dept 2013]; People v Filer, 97 AD3d 1095 [4th Dept 2012]; People v Boykins, 85 AD3d 1554 [4th Dept 2011]).

As we held in People v Alvarez (20 NY3d 75, 81 [2012], cert denied 569 US —, 133 S Ct 1736 [2013], and 569 US —, 133 S Ct 2004 [2013]), in relation to the constitutional right to a public trial, “preservation of public trial claims is still required. Bringing a public trial violation to a judge’s attention in the first instance will ensure the timely opportunity to correct such errors” (see also People v Garcia, 95 NY2d 946, 947 [2000]; People v Nieves, 90 NY2d 426, 431 [1997]). Therefore, defendant’s argument that he need not preserve an issue that has constitutional significance is unconvincing.

Any uncertainty could have easily been remedied with an objection during opening statements or the witness testimony, or to the jury charge. Requiring preservation will prevent unnecessary surprise after the conduct of a complete trial. Accordingly, we hold that issues of non-facial duplicity, like those of facial duplicity, must be preserved for appellate review. The Fourth Department cases holding otherwise should not be followed.

As to the lineup identification, any error in its admission “must be deemed harmless beyond a reasonable doubt when considered in light of the overwhelming evidence of defendant’s guilt” (People v Owens, 74 NY2d 677, 678 [1989]; accord People v Harris, 80 NY2d 796 [1992]). Here, there were three eyewitnesses, two of whom knew the defendant personally, ballistics evidence, a confession to one of the witnesses an hour after the shooting, and defendant’s strenuous efforts to avoid arrest.

Finally, we reject defendant’s claim that he was improperly limited in establishing through police reports that the People’s main witness, the victim’s wife, described the shooter to the police and that the description matched that of the alleged accomplice in this case. As to limitations on cross-examination of prosecution witnesses, it is well settled that “[a]n accused’s right to cross-examine witnesses ... is not absolute” (People v Corby, 6 NY3d 231, 234-235 [2005]). Because prior statements are

“often collateral to the ultimate issue before the jury and bear[ ] only upon the credibility of the witness, [their] admissibility is entrusted to the sound discretion of the Trial Judge whose rulings are not subject to review unless there has been an abuse of discretion as a matter of law” (People v Duncan, 46 NY2d 74, 80 [1978], cert denied 442 US 910 [1979]).

The trial court, acting in accordance with these principles, did not abuse its discretion when it ruled that the police reports were inadmissible extrinsic evidence on a collateral matter. Defendant failed to demonstrate that the source of the information in the reports was actually the victim’s wife herself. The officers/authors of the reports wrote that they were based on secondhand information, and neither of them had ever spoken to the victim’s wife personally.

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

Judges Graffeo, Read, Smith, Pigott, Rivera and AbdusSalaam concur.

Order affirmed.

      . The Appellate Division also held that defendant’s multiplicity argument was preserved but without merit. Defendant does not pursue the multiplicity claim on appeal to this Court.

      . We note this is not a case where defendant was tried without an indictment at all or on a crime removed from anything for which he was indicted, but rather one in which there is a lack of clarity as to which of two incidents the relevant count of the indictment refers to.


author: Abdus-Salaam, J.

text:
    [24 NE3d 1086, 999 NYS2d 822]
    Trump Village Section 3, Inc., Respondent, v City of New York et al., Appellants.
    Argued November 17, 2014;
    decided December 17, 2014

      POINTS OF COUNSEL

      Zachary W. Carter, Corporation Counsel, New York City {Frances J. Henn, Andrew G. Lipkin, Vincent D’Orazio and Jeffrey D. Friedlander of counsel), for appellants.
    The dissolution of Mitchell-Lama Trump Village Section 3 and its reconstitution as a newly formed Business Corporation Law entity resulted in a taxable transfer under the New York City Real Property Transfer Tax because the dissolution and reconstitution effectuated a conveyance of real property from Mitchell-Lama Trump Village Section 3 to the newly created Business Corporation Law entity. (Matter of Long v Adirondack Park Agency, 76 NY2d 416; Matter of Chemical Bank v Tully, 94 AD2d 1; El Paso Corp. v New York State Dept. of Taxation & Fin., 36 AD3d 655, 8 NY3d 813; Matter of Conde Nast Publs. v State Tax Commn., 51 AD2d 17; Matter of Howard v Wyman, 28 NY2d 434; Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393; Lorillard Tobacco Co. v Roth, 99 NY2d 316; Matter of Bamberger Polymers v Chu, 111 AD2d 589, 66 NY2d 603; Matter of Blue Spruce Farms v New York State Tax Commn., 99 AD2d 867, 64 NY2d 682; Sofsky v Rosenberg, 76 NY2d 927.)

      Stroock & Stroock & Lavan LLP, New York City {Daniel A. Ross, David M. Cheifetz and Hannah Yu of counsel), for respondent.
    I. The City of New York violates the rule that a taxing statute must be narrowly construed, with all doubts as to its applicability to be resolved in favor of the taxpayer. (Debevoise & Plimpton v New York State Dept. of Taxation & Fin., 149 Misc 2d 571, 80 NY2d 657; Matter of Columbus Park Corp. v Department of Hous. Preserv. & Dev. of City of N.Y., 80 NY2d 19; Matter of Grace v New York State Tax Commn., 37 NY2d 193; Matter of Mobil Oil Corp. v Finance Adm’r of City of N.Y., 58 NY2d 95; Dun & Bradstreet, Inc. v City of New York, 276 NY 198; American Locker Co. v City of New York, 308 NY 264; Gould v Gould, 245 US 151; Matter of Bloomingdale Bros. v Chu, 70 NY2d 218; Matter of Conde Nast Publs. v State Tax Commn., 51 AD2d 17; Bingham v New York City Tr. Auth., 99 NY2d 355.) II. The New York City Real Property Transfer Tax does not apply to Trump Village Section 3, Inc.’s exit from the Mitchell-Lama program by means of amending its certificate of incorporation.
      (Department of Justice, F.B.I. v Calspan Corp., 578 F2d 295; People ex rel. Consolidated Kan. City Smelting & Ref. Co. v Secretary of State, 13 App Div 50; Polk v Mutual Reserve Fund Life Assn., 137 F 273; Matter of Empire State Supreme Lodge, 53 Misc 344; East Midtown Plaza Hous. Co., Inc. v Cuomo, 20 NY3d 161; Brock v Poor, 216 NY 387; Manhattan Life Ins. Co. v Continental Ins. Cos., 33 NY2d 370; Sofsky v Rosenberg, 76 NY2d 927; Dwyer v Adler, 251 AD2d 535; Ten Eyck v Whitbeck, 156 NY 341.)
   OPINION OF THE COURT

Abdus-Salaam, J.

We are presented with the following question: Does a taxable transfer pursuant to Tax Law § 1201 (b) and section 11-2102 (a) of the Administrative Code of the City of New York occur when a residential housing cooperative corporation terminates its participation in the Mitchell-Lama program and amends its certificate of incorporation as part of its voluntary dissolution and reconstitution as a cooperative corporation governed by the Business Corporation Law? We agree with the Appellate Division that no taxable event occurs.

L

Plaintiff, Trump Village Section 3, Inc. (Trump Village), was incorporated in August 1961 as a Mitchell-Lama cooperative housing corporation pursuant to the Limited-Profit Housing Companies Law (Private Housing Finance Law art II). Trump Village owns a residential co-op complex consisting of three 23-story buildings, with 1,674 residential apartments, located in Coney Island, Brooklyn. Plaintiff remained in the Mitchell-Lama program beyond the requisite 20 years (Private Housing Finance Law § 35 [2]). In 2007, by vote of its shareholders, and with the permission of the State of New York, Trump Village terminated its participation in the Mitchell-Lama program, and, pursuant to Private Housing Finance Law § 35 (3), “reconstituted” itself as a corporation under the Business Corporation Law by amending its certificate of incorporation.

In August 2010, the New York City Department of Finance (the Department) issued a Notice of Determination to Trump Village of a tax deficiency in the sum of $21,149,592.50, which included interest and a penalty. The Department took the position that because Trump Village was now a private cooperative corporation that had amended its certificate of incorporation and terminated its participation in the Mitchell-Lama program by reconstitution, it had engaged in a transaction that qualified “[as] a conveyance of the underlying real property.” According to the Department, Trump Village was thus required to pay a real property transfer tax (hereinafter RPTT) pursuant to Tax Law § 1201 (b) and section 11-2102 (a) of the Administrative Code of the City of New York.

Plaintiff commenced this action seeking, among other things, a declaratory judgment that the RPTT is inapplicable because the tax applies only to transfers and conveyances of real property or economic interests in real property, from one entity to another, and not to plaintiff’s exit from the Mitchell-Lama program as a result of a “reconstitution.” The Supreme Court agreed with defendants and issued a declaratory judgment that the conversion from a Mitchell-Lama cooperative housing corporation to a cooperative housing corporation under the Business Corporation Law constitutes a conveyance which is subject to the RPTT. The Appellate Division reversed, granted that branch of plaintiff s motion which was for summary judgment declaring that the RPTT tax was improperly imposed and remitted to Supreme Court (109 AD3d 899, 906 [2013]). The Appellate Division granted leave and certified the question as to whether its order was properly made (2013 NY Slip Op 91581[U] [2013]). We now affirm and answer the certified question in the affirmative.

IL

Section 11-2102 (a) of the Administrative Code of the City of New York provides that an RPTT is imposed “on each deed at the time of delivery by a grantor to a grantee.” A deed is defined in section 11-2101 (2) as

“[a]ny document or writing (other than a will), regardless of where made, executed or delivered, whereby any real property or interest therein is created, vested, granted, bargained, sold, transferred, assigned or otherwise conveyed, including any such document or writing whereby any leasehold interest in real property is granted, assigned or surrendered.”

In support of their position that the privatization of Trump Village is a taxable event, defendants argue that an amendment to a certificate of incorporation is a “deed.” Defendants also assert that Trump Village is a new corporation and that there was actually a conveyance of real property to a different corporation, with Trump Village being both the grantor and grantee. However, defendants’ construction of the RPTT cannot be reconciled with the plain language of the statute. Furthermore, even if there were any ambiguities regarding the application of the RPTT to this situation, “doubts concerning [a taxing statute’s] scope and application are to be resolved in favor of the taxpayer” (Debevoise & Plimpton v New York State Dept. of Taxation & Fin., 80 NY2d 657, 661 [1993]). Thus, we reject defendants’ strained interpretation of section 11-2102 (a) of the Administrative Code of the City of New York.

We first address defendants’ argument that Trump Village became an entirely new corporation. While defendants assert that a new corporation must have been formed because Trump Village had to “dissolve” under the Private Housing Finance Law before “reconstituting” as a corporation no longer governed by the restrictions of the Private Housing Finance Law, the corporation in the amended certificate of incorporation, Trump Village Section 3, Inc., is the same corporation that was named in the original certificate of incorporation. The Business Corporation Law distinguishes between amending a certificate of incorporation (§ 801 et seq.) and formation of a corporation (§ 401 et seq.). Section 801 (b) (14) provides that a certificate of incorporation may be amended “[t]o strike out, change or add any provision . . . relating to the business of the corporation, its affairs, its right or powers.”

Plaintiff filed a “CERTIFICATE OF AMENDMENT . . . Under Section 805 of the Business Corporation Law.” The original certificate of incorporation contained the preamble: “We, the undersigned, for the purpose of forming a corporation pursuant to Article XII of the Public Housing Law of the State of New York.” The amendment modified this language to read: “We, the undersigned, for the purpose of forming a corporation pursuant to the Business Corporation Law.” The change in the prefatory language did not “form” a new corporation, but instead deleted the reference to the Private Housing Finance Law, which no longer governed any aspect of the corporation or its shareholders. The amendment also stated that the original “Certificate of Incorporation was filed in the office of the Secretary of State on August 29, 1961” and listed the date of each prior amendment. Thus, Trump Village remains the same corporation, with changes, that it was in 1961.

The Private Housing Finance Law provides that a Mitchell-Lama corporation “may voluntarily be dissolved” and

“[that] [u]pon . . . dissolution, title to the project may be conveyed in fee to the owner or owners of its capital stock or to any corporation designated by it or them for that purpose, or the company may be reconstituted pursuant to appropriate laws relating to the formation and conduct of corporations” (Private Housing Finance Law § 35 [2], [3] [emphasis added]).

Accordingly, there are two options for the process of privatization, and plaintiff chose the second option — reconstitution through amendment of its certificate of incorporation. Defendants posit that the legislature intended the word “reconstitute” to mean the same thing as “reincorporate.” However, as long ago as 1897, it was recognized that reincorporation “cannot be deemed the formation of a new corporation, but should be regarded as the continuation of the existing one” (People ex rel. Consolidated Kan. City Smelting & Ref. Co. v Secretary of State, 13 App Div 50, 53 [3d Dept 1897]; see also 15 Fletcher, Cyclopedia of Corporations § 7204 [“In a sense, (a reincorporation) is merely an amendment of the charter; there is no new corporation, and the company is the same as before the reincorporation”]).

Regarding defendants’ argument that the amendment so radically altered the business of Trump Village that it must have become a new corporation, we note that the RPTT does not tax changes in the business or purpose of the corporation owning real property, but taxes conveyances of property or an interest therein. Similarly, while defendants argue that the Trump Village shareholders have realized a tremendous increase in the value of their apartments without paying an RPTT, the RPTT is not imposed simply because the value of property has increased. And, as pointed out by plaintiff, the RPTT is and will continue to be collected on the full value of the shares of each apartment that is sold.

Defendants also maintain that there was a deed in this case, asserting that the certificate of amendment is a deed because it is a writing that conveys real property rights or interests. But the certificate of amendment does not do that. There is absolutely no indication that the amendment was meant to be a document of conveyance. The Appellate Division correctly held that there is “no support in either case law or the record for the City defendants’ interpretation of the law” (109 AD3d at 905).

Defendants further point to the “mere change in form of ownership” exemption of section 11-2106 (b) (8) of the Administrative Code of the City of New York, reasoning that because the exemption does not apply to a conveyance to a cooperative housing corporation, but does apply to a transfer to a Mitchell-Lama cooperative, the legislature must have intended to tax all privatizations of Mitchell-Lama cooperatives. However, as the Appellate Division recognized, the exemption only applies where there has been a conveyance in the first place, and thus, because there was no conveyance, the exemptions and the exceptions to those exemptions are not relevant.

Finally, defendants’ reliance on this Court’s decision in East Midtown Plaza Hous. Co., Inc. v Cuomo (20 NY3d 161 [2012]) is misplaced. At issue in East Midtown was whether a privatization by means of an amendment to a certificate of incorporation was subject to the disclosure requirements under the Martin Act. The decision addressed the impact of privatization on shareholders and focused on the rights of the shareholders, and the substantial changes in the nature of their interests. It lends no support for defendants’ imposition of an RPTT where there has been a Mitchell-Lama privatization.

Therefore, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Lippman and Judges Read, Smith, Pigott and Rivera concur.

Order affirmed, with costs, and certified question answered in the affirmative.

       The record includes a July 20, 2005 letter to plaintiffs counsel from the New York State Division of Housing and Community Renewal. The letter, which apparently contains a typographical error in the subject line (listing the property as Trump Village Section 4, Inc. rather than Trump Village Section 3, Inc.), states, among other things: “The Division has not taken the position that the housing company could only privatize by dissolving and conveying title to another corporation. The Division agrees that, as a procedural matter, privatization can take place by reconstituting the company through the amending of its certificate of incorporation.”