Drug Factory Presumption:

• Library: The Rulebook: The Definitive Quick Reference Guide for New York Criminal Law Practitioners (2020 Ed.)

► DRUG FACTORY PRESUMPTION:

Circumstances: The Court of Appeals "has found circumstances present evincing the existence of a drug factory for purposes of the presumption where cocaine was found in a bathrobe that was under a pile of clothes, along with, 'in plain view, . . . recognized adulterants and drug paraphernalia' (People v Tirado, 47 AD2d 193, 195-196 [1st Dept 1975], affd on op below 38 NY2d 955 [1976]). Similarly, [the Court has] concluded that the presumption was properly applied where an 'apartment contain[ed] a large cache of drugs, money and weapons in plain view' (People v Bundy, 90 NY2d 918, 920 [1997]), as well as where police found a small residue of cocaine on a dish, grains of rice on the floor, a plastic bag containing over one-half ounce of cocaine in a closed drawer, and 10 ounces of cocaine hidden in a bag of rice in a refrigerator (see People v Tejeda, 73 NY2d 958, 960 [1989]). [By] contrast, [the Court concluded that] there was insufficient evidence to charge the presumption where, upon entering an apartment in which an undercover officer had recently made a controlled buy, police found only 'a tinfoil packet of cocaine on the floor in the four-to-five-inch space between a couch and the wall,' as well as a large amount of cash (People v Martinez, 83 NY2d 26, 30, 34 n 3 [1993], cert denied 511 US 1137 [1994])" (People v Hogan, 26 NY3d 779, 784 [2016]; see People v Kims, 24 NY3d 422, 432-433 [2014]).

Close Proximity: "[A] defendant is in 'close proximity' within the meaning of [Penal Law §] 220.25 (2) when the defendant is sufficiently near the drugs so as to evince [the] defendant's participation in an apparent drug sales operation, thus supporting a presumption of [the] 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), [the Court of Appeals] glean[s] certain general principles that...