Law. As always, I thank Mari Curbelo and Tom Klein for their encouragement and critiques. I also gratefully acknowledge the exceptional research assistance of Jacob Chin and the support of CUNY School of Law. 2 People v. Hogan, 26 N.Y.3d 779 (2016). 3 Id. at 781; N.Y. CRIM. PROC. LAW §190.50(5) (McKinney 1978) (prescribing a defendant's right to testify before the Grand Jury). 4 Hogan, 26 N.Y.3d at 781-82. 2016] WHAT PUBLIC DEFENDERS DON'T (HAVE TO) TELL 15 cocaine, baggies and a razor blade. 5 Hogan's former girlfriend, Hope Fisher, was also inside the apartment and she, too, was arrested. Since Mr. Hogan did not live at the apartment or have any contraband on him when he was stopped by the police, the prosecution's case hinged on the so-called drug factory presumption. 6 New York law allows "a permissible presumption, under which the [fact-finder] may assume the requisite criminal possession simply because the defendant. .. is within a proximate degree of closeness to drugs found in plain view, under circumstances that evince the existence of a drug sale operation[.]" 7 Mr. Hogan appeared in court on May 26, 2005 and his case was scheduled for a preliminary hearing on Friday, May 27, 2005. 8 However, on May 27, Mr. Hogan asked that his lawyer subpoena Ms. Fisher to testify on his behalf. 9 Apparently, almost from the moment of arrest, Ms. Fisher took full and sole responsibility for the drugs and related paraphernalia. 10 As a result, the preliminary hearing was adjourned until the following Wednesday, June 1, 2005. Nevertheless, at approximately 4:00 p.m. on Friday, May 27, the prosecution faxed notice to defense counsel of their intent to bypass the preliminary hearing and present the case to the Grand Jury on Tuesday, May 31 at 1:45 p.m. 11 The fax further instructed defense counsel to notify the prosecutor if his client wanted to testify in the Grand Jury.
