Opinion
2007NY071625.
Decided on February 27, 2008.
The defendant, Rayshawn Key is charged, along with another defendant Latoya Pugh, with one count each of Criminally Using Drug Paraphernalia in the Second Degree, PL 220.50(3), and Unlawful Possession of Marijuana, PL221.05. The defendant has moved in an omnibus motion for dismissal for facial insufficiency; suppression of physical evidence and statements; and discovery and a bill of particulars. The defendant's motion is decided as follows.
An information is facially sufficient if it meets three requirements. First, it must substantially conform to the formal requirements of CPL 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL 100.15 and 100.40; see People v Dumas, 68 NY2d 729; see also People v Alejandro, 70 NY2d 133).
While the requirement of nonhearsay allegations (the "prima facie" requirement) has been described as a "much more demanding standard" than a showing of reasonable cause alone ( People v Alejandro, 70 NY2d at 138, quoting 1968 Report of Temp Comm on Rev of Penal Law and Crim Code, Intro Comments), it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt at trial (People v Henderson, 92 NY2d 677, 680; People v Hyde, 302 AD2d 101, [1st Dept 2003]). Thus, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged" ( People v Sylla, 7 Misc 3d 8, 10 [2nd Dept 2005]). Additionally, where the factual allegations contained in an information "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" ( People v Casey, 95 NY2d 354, 390; see also People v. Konieczny, 2 NY3d 569; People v Jacoby, 304 NY 33, 38-40; People v Knapp, 152 Misc 368, 370, affd 242 App Div 811; People v Shea, 68 Misc 2d 271, 272; People v Allen, 92 NY2d 378, 385; People v Miles, 64 NY2d 731, 732-733).
In the instant case, the defendant was allegedly present in an apartment at 6:20 a.m. on September 20, 2007 when the deponent police officer executed a search warrant at that location. Recovered from a pair of shorts found inside a bedroom at the premises were two bags of alleged marijuana, as well as a digital scale and a plastic bag containing an unknown green substance from inside a hallway closet.
The two bags of alleged marijuana tested positive in the field for the presence of the drug. A laboratory analysis of the contents of the plastic bag, however, revealed that no controlled substance was present.
A positive field test and negative laboratory analysis report were filed with the court on September 26, 2007.
Defendant argues that the factual allegations fail to establish that he had dominion and control over the marijuana recovered from the shorts found in the bedroom. Further, he argues that the facts fail to establish he possessed the scale under circumstances evincing either an intent to use it unlawfully or the knowledge that some person intended to use it unlawfully for the manufacturing, packaging or dispensing of a narcotic drug.
Under PL 221.05 "a person is guilty of unlawful possession of marijuana when he knowingly and unlawfully possesses marijuana." Under PL 220.50(3), "a person is guilty of criminally using drug paraphernalia in the second degree when he knowingly possesses scales and balances used for the purpose of weighing and measuring controlled substances, under circumstances evincing an intent to use and knowledge that some person intends to use the same for the purpose of unlawfully manufacturing, packaging and dispensing of a narcotic drug or stimulant." Under PL 10.00, to "possess" means to have physical possession of or dominion and control over tangible property. In this case, the defendant is alleged to have constructively possessed the marijuana and digital scale recovered.
Constructive possession requires more than a defendant's mere presence in a location where contraband is recovered. In order to support a charge that the defendant was in constructive possession of tangible property, the People must show that the defendant exercised dominion and control over the property by demonstrating that he had a sufficient level of control over the area in which the contraband was found or over the person from whom it was seized ( see People v Manini, 79 NY2d 561, 573). Constructive possession is established where the defendant has been found in proximity to contraband recovered from premises under the defendant's control ( see People v Tirado, 47 AD2d 193 [1st Dept 1975]).
Factors which tend to demonstrate a defendant's control over particular premises are the defendant's provision of the premises' address as a home address to city agencies ( People v Vasquez, 142 AD2d 698 [2nd Dept 1988]; the defendant's sole occupancy of premises where contraband is found in plain view ( Matter of Dirhim A., 178 AD2d 339 [1st Dept 1991]); the defendant's named tenancy on a lease to premises where contraband is recovered ( People v Torres, 68 NY2d 677); and the defendant's possession of a key to premises where contraband is recovered ( see People v Torres, 68 NY2d 677; People v Sandobar, 191 AD2d 375 [1st Dept 1993]; Matter of Dirhim A., 178 AD2d 339 [1st Dept 1991]; People v Armstrong, 160 AD2d 206 [1st Dept 1990]; People v Robertson, 61 AD2d 600 [1st Dept 1978]; People v Vasquez, 141 AD2d 698 [2nd Dept 1998]).
None of these factors are present here. The defendant's only alleged connection to the apartment in which the marijuana and digital scale were recovered was his presence there, along with the co-defendant, at the time the search warrant was executed. It is not alleged that he owned or leased the apartment, or even that he lived there. Nor is he alleged to have been the sole occupant in the apartment at the time the alleged contraband was recovered: he was arrested with a co-defendant. The accusatory instrument further fails to specify the defendant's proximity to the alleged contraband; it does not state the precise location where the defendant was situated inside the apartment when the search warrant was executed.
Moreover, the alleged contraband was not found in plain view: the marijuana was found in a pair of shorts in a bedroom, and the digital scale was found inside a hallway closet. There are no facts or circumstances from which it can be reasonably inferred that the defendant exercised control either over the premises in which the alleged contraband was found or over the alleged contraband itself. Defendant's mere presence at the scene is insufficient to demonstrate his dominion and control over the property recovered. Accordingly, the factual allegations in the accusatory instrument fail to establish the defendant's constructive possession of either the marijuana or digital scale.
Further, and in any event, under the circumstances under which it was recovered, possession of the digital scale cannot be considered criminally using drug paraphernalia under PL 220.50. A digital scale in and of itself is not conspicuously illegal ( see People v Rodriguez, 159 Misc 2d 670). Because a digital scale has a potentially innocuous use, in order for possession of it to be criminal the possessor must intend or know that it is to be used unlawfully for the manufacturing, packaging or dispensing of a narcotic drug ( People v Maas, 10 Misc 3d 1051; see also People v Way, 147 Misc 2d 821, 825). Here, the digital scale was recovered from inside a hallway closet next to a plastic bag containing an unknown green substance which was subsequently confirmed by a laboratory analysis to be a non-controlled substance. The proximity of the scale to this unknown, non-controlled green substance in no way supports the inference that the scale was possessed unlawfully with the intent and knowledge that it be used for the manufacturing, etcetera, of a narcotic drug.
Neither does the fact that two bags of marijuana were found inside the same apartment tend to show that the scale was possessed with the requisite statutory knowledge and intent. The circumstances under which the two bags of marijuana were found, inside a pair of shorts in a bedroom in the apartment, suggest possession for personal use. Penal Law 220.50 was enacted as a means of prosecuting individuals engaged in drug trafficking where drug paraphernalia is recovered at the time of arrest but drugs are not (see Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, PL 200.50, at 77). This small amount of marijuana, found apart from the scale in an article of clothing in a different room, does not bespeak the drug trafficking targeted by the statute.
In sum, the factual allegations in the complaint fail to establish the defendant's constructive possession of the marijuana or digital scale; further, they fail to establish that the digital scale was "drug paraphernalia" within the meaning of PL 220.50. The complaint is therefore dismissed as facially insufficient. Defendant's remaining points are moot.
This constitutes the decision and order of the Court.