Opinion
2008QN030552.
Decided August 12, 2008.
Defendant Brain Maley moves in an omnibus motion for the following relief: (1) Inspection and Dismissal of the Accusatory Instrument; (2) A Sandoval Application and Disclosure of Prior Bad Act Evidence; (3) Preclusion of Statement Evidence; (4) Controversion of the Search Warrant; (5) A Bill of Particulars pursuant to CPL § 200.95; (6) Discovery pursuant to CPL § 240.20 and Brady Material; and (7) Reservation of Rights. The People move for a Protective Order and for Reciprocal Discovery. The motions are decided as follows:
Defendant Brain Maley is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03.) The accusatory instrument charges defendant with the commission of the aforementioned crime on June 4, 2008 at 9:55AM, inside of 43-15 46th Street, Queens, New York, under the following circumstances:
Deponent [Detective Kevin Pecorella] states that at the above mentioned date and time of occurrence, he executed a Queens County Criminal Court Search Warrant, signed by the Honorable Judge Modica, at the above mentioned location. Deponent further states that upon entering said location, he observed the defendant, Brian Maley, sleeping on the sofa. Deponent further states that he recovered a Newport cigarette box with a folded paper containing cocaine from the coffee table next to the defendant.
Deponent further states that his conclusion that the substance recovered is cocaine is based upon his experience as a police officer and in his training in the identification and packaging of controlled substances and marijuana.
DISMISSAL OF THE ACCUSATORY INSTRUMENT
Defendant moves for dismissal of the accusatory instrument on the ground of facial insufficiency. Specifically, defendant avers that the accusatory instrument does not plead facts sufficient facts to establish a prima facie case of Criminal Possession of a Controlled Substance in the Seventh Degree. Defendant argues that there are no facts pled which establish possession.
The People oppose the motion arguing that because defendant was sleeping in the apartment right by the drugs, this indicates that defendant was staying there and thus the information sufficiently alleges the crime charges.
To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. (CPL § 70.10; CPL §§ 100.15 and 100.40[b]; People v Jones , 9 NY3d 259 ; People v Casey, 95 NY2d 354; People v Dumas, 68 NY2d 729.) These facts must be supported by non-hearsay allegations which, if true, establish every element of the offense. (CPL § 100.40[c].) An information which fails to satisfy these requirements is jurisdictionally defective. (CPL §§ 170.30 and 170.35; People v Alejandro, 70 NY2d 133; People v Dumas, supra.)
In reviewing an accusatory instrument for facial sufficiency, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense . . .," the Court should give it "a fair and not overly restrictive or technical reading." ( People v Casey, 95 NY2d at 360.) Thus, what is needed in the pleading is that the factual allegations are sufficiently evidentiary in character such that they tend to support the charges. ( People v Allen, 92 NY2d 378, 385.)
Section 220.03 of the Penal Law provides:
A person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance.
Penal Law § 10.00(8) defines "possess" as "to have physical possession or otherwise to exercise dominion or control over tangible property." Therefore, pursuant to these statutes, the People must show that the defendant physically possessed or exercised dominion or control over the controlled substance. (PL § 220.03; People v Manini, 79 NY2d 561, 573; People v Reisman, 29 NY2d 278, 285.) In order to sustain a conviction for criminal possession of a controlled substance where the defendant does not physically possess it and the substance is not found in open view, the People must prove that the defendant was in constructive possession of the controlled substance, i.e., that he had "dominion and control" over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized. (Penal Law § 10.00; People v Manini, supra at 573; People v Pearson, 75 NY2d 1001; People v Headley, 74 NY2d 858, 859; People v Scott, 206 AD2d 392, 393-394 [2d Dept 1994].)
A defendant's mere presence in an area where the controlled substance is found is not sufficient to establish that he exercised such dominion and control as to establish constructive possession. ( People v Alicea , 23 AD3d 572 [2d Dept 2005]; People v Scott, 206 AD2d 392 [2d Dept 1994]; People v Harvey, 163 AD2d 532 [2d Dept 1990]; People v Dawkins, 136 AD2d 726, 727[2d Dept 1988].)
Constructive possession is a fact-laden question. ( People v Roque, 99 NY2d 50, 54.) Factors tending to establish the exercise of dominion and control include allegations that a defendant's personal effects are found in the apartment or that a defendant owned, rented, frequently visited, or had keys or other means of access to the premises where the drugs were found. ( People v Torres, 68 NY2d 677; People v Alicea, 23 AD3d 573 [2d Dept 2005]; People v Nunziata , 10 AD3d 695 [2d Dept 2004]; People v Morales, 248 AD2d 731, 732 [2d Dept 1998]; People v Murphy, 190 AD2d 870, 871[2d Dept 1993]; People v Dawkins, 136 AD2d 726 [2d Dept 1988].) In People v Skyles, a case upon which the People rely, constructive possession of a weapon was established inasmuch as the gun was found on defendant's dresser, among defendant's belongings, and in the bedroom of the apartment in which defendant resided. (266 AD2d 321[2d Dept 1999].)
Constructive possession has also been found where a defendant is the only person in an apartment and the contraband is found in plain view and in close proximity to the defendant. ( People v Scott, 75 AD2d 858 [2d Dept 1980].)
After reviewing the language of the accusatory instrument, it appears there are insufficient facts from which the Court may infer that defendant exercised dominion and control over the cocaine found in the Newport cigarette box. ( People v Manini, supra; People v Headley, supra.) Thus, the People have not made a prima facie case tending to establish that defendant committed the offense of criminal possession of a controlled substance. Furthermore, the People do not assert in their Affirmation in Opposition that they are relying upon the "room presumption" found in PL § 220.25(2).
Based upon the law and these facts, the accusatory instrument fails to meet the requirements of CPL §§ 100.15 and 100.40. Accordingly, defendant's motion to dismiss is granted.
In view of the Court's decision on the defendant's motion to dismiss the accusatory instrument, the remaining applications for relief are dismissed as moot. The Court directs that sealing be stayed for thirty (30) days from the date of this decision. The People have leave to file a timely, facially sufficient information consistent with CPL §§ 30.30 and 170.30. ( People v Nuccio, 78 NY2d 102, 104-105.)
This opinion constitutes the decision and order of the court.