The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that the trial judge should not have allowed the jury to consider whether the defendant, who was arrested outside the apartment, was in “close proxity” to the cocaine in the apartment.  Penal Law 220.25(2) creates a presumption that persons in “close proximity” to drugs that are being mixed or packaged possesses those drugs (the so-called “drug factory” presumption). The trial judge also instructed the jury they could consider whether the defendant constructively possessed the drugs by virtue of his control over the area where the drugs were found.  Because it can not be determined whether the jury based its verdict on the erroneous “drug factory” charge or the correct “constructive possession” charge, the relevant convictions were reversed and a new trial ordered.  The Court of Appeals went through all the scenarios which have been held to constitute “close proximity” to drugs and concluded that where a defendant is outside the structure where the drugs are located and is not in the process of fleeing, the “drug factory” presumption does not apply:

…[T]he 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” … . 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. …

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[].” Nor was he found immediately outside the premises while trying to escape.  People v Kims, 2014 NY Slip Op 07196, CtApp 10-23-14