The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissenting opinion by Judge Rivera, determined the evidence supported the jury’s consideration of the “drug factory presumption” re: possession of drugs. In addition, the Court of Appeals held the decision whether to testify before a grand jury is a strategic decision to be made by the attorney, not the defendant, and, in order to demonstrate ineffective assistance in this context, a defendant must show prejudice. The presence of some loose cocaine on the floor, some baggies and a razor blade was sufficient to trigger the “drug factory presumption”, i.e., a presumption of possession by everyone in close proximity to the cocaine. Without the presumption, there would not have been enough evidence defendant possessed the drugs:
While there was not a vast quantity of cocaine found, the evidence presented at trial supported an inference of more than mere intent to use or sell. Specifically, the evidence of packaged and loose drugs, paraphernalia and a razor blade in plain view was sufficient to establish that drugs were being “package[d] or otherwise prepare[d] for sale” in the apartment, permitting the conclusion that defendant, who was in close proximity to the drugs, knowingly possessed them … . * * *
While the right to testify before a grand jury is significant and “must be scrupulously protected” …, “a prospective defendant has no constitutional right to testify before the [g]rand [j]ury” … . In contrast to the “constitutional nature of the right to testify at trial” … , the right to testify before the grand jury is a limited statutory right … . Whether to exercise that right is a decision that requires “the expert judgment of counsel” … because it “involves weighing the possibility of a dismissal, which, in counsel’s judgment may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses” — quintessential matters of strategy … . The various risks and benefits that must be considered render the decision of whether to exercise this statutory right “an appropriate one for the lawyer, not the client” … .
In any event, this Court has repeatedly and consistently held that — even when it is due to attorney error — a “defense counsel’s failure to timely facilitate defendant’s intention to testify before the [g]rand [j]ury does not, per se, amount to a denial of effective assistance of counsel” … . That is, even where no strategy is involved, a defendant must show prejudice … . People v Hogan, 2016 NY Slip Op 01207, CtApp 2-18-16
CRIMINAL LAW (EVIDENCE SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION)/EVIDENCE (CRIMINAL, SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION)/ATTORNEYS (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT)/INEFFECTIVE ASSISTANCE (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT, DEFENDANT MUST DEMONSTRATE PREJUDICE)/GRAND JURY (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT, DEFENDANT MUST DEMONSTRATE PREJUDICE TO SUPPORT INEFFECTIVE ASSISTANCE CLAIM)