Opinion
2008NY022635.
Decided September 3, 2008.
ADA Patrick Egan, New York County District Attorney's Office, for the People.
Stephanie Kaplan, Esq., The Legal Aid Society, for the Defense.
The defendant, Lori Elwick, along with Jose Otero, Hector Turell and Nellie Sanchez, is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), one count of Criminal Possession of a Weapon in the Fourth Degree (PL 265.01) and one count of Unlawful Possession of Marijuana (PL 221.05). The defendant has moved in an omnibus motion for dismissal for facial insufficiency; suppression of physical evidence; preclusion of identification evidence; a bill of particulars and discovery; and preclusion of prior bad acts. The defendant's motions are decided as follows.
FACIAL SUFFICIENCY
In order to be facially sufficient, an information 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).
The requirement of nonhearsay allegations 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); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt ( 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 [2d Dept 2005]). 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, 360; 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 Allen, 92 NY2d 378, 385; People v Miles, 64 NY2d 731, 732-733; People v Shea, 68 Misc 2d 271, 272; People v Scott, 2005 NY Slip Op 25179 [Crim Ct NY County [2005]). Ultimately," the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged" ( People v Barona, 19 Misc 3d 1122 [A], 1 [Crim Ct, NY County 2008]).
The instant complaint charges that on March 21, 2008 at approximately 6:10 p.m. police officers executed a search warrant inside Apartment 13 E at 55 East 99th Street. At that time, the defendant and three co-defendants were present in the living room. Defendant Elwick was sitting on a sofa and co-defendant Nellie Sanchez was standing in the living room. When the police entered, co-defendants Otero and Turrell ran from the living room into one of the bedrooms and shut the door. In that bedroom, police officers subsequently recovered three pipes and five ziplock bags containing crack/cocaine residue as well as three marihuana cigarettes from under the bed. In a second bedroom police officers recovered two pipes containing crack /cocaine residue from a dresser drawer. A billy club was also recovered from under the sofa in the living room. At the time the search warrant was executed an apparently uncharged individual identified as Antonio Caban, the tenant of record for the apartment, entered the apartment and stated that the apartment was his and that he lived there.
Defendant claims that the complaint fails to establish that she knowingly possessed the drugs or weapon recovered in this case. The defendant contends that the drug factory presumption under PL § 220.25 is inapplicable to her since the drugs were not recovered in plain view in close proximity to her as required by that provision. Additionally, the defendant argues that the fact that she was found sitting on the couch in the living room does not provide reasonable cause to believe that she exercised dominion and control over the drugs found in the bedrooms of the apartment or the billy club found under the couch and therefore fails to support the theory that she constructively possessed those items. Accordingly, the defendant seeks dismissal of the complaint for facial insufficiency.
Under PL 220.03 "a person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance." Under PL 221.05 "a person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana." Under PL 265.01, "a person is guilty of criminal possession of a weapon in the fourth degree when he possesses any . . . billy." 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 contraband 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 [2d 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 [2d Dept 1998]).
Here, the defendant is alleged to have been sitting on the couch in the living room in an apartment when a search warrant was executed. At that time, the three co-defendants were also present in the living room. When the police entered, one of the three co-defendants remained standing in the living room while the other two fled to one of the apartment bedrooms. Underneath the bed in that bedroom, three pipes with crack residue, five ziplock bags with crack residue, and three marihuana cigarettes were found. In a second bedroom two pipes with crack residue were found in a dresser drawer. As the defendant correctly points out, the so-called "drug factory" presumption under PL § 220.25 may not be used to impute possession of the drugs to her. For the presumption to apply, the drugs must both be found in "open view in a room . . . in close proximity" to the defendant and "under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare [them] for sale" (PL 220.25). Here, the crack/cocaine and marihuana were found secreted under a bed and in a dresser drawer in two separate bedrooms while the defendant was seated on a couch in the living room. As such, they cannot be said to have been found in "open view in a room . . . in close proximity" to the defendant ( see People v Martinez, 83 NY2d 26, 34); People v Edwards , 23 AD3d 1140, 1141 (4th Dept 2005)]. Additionally, the relatively small quantity of drugs recovered — some pipes and bags with crack/cocaine residue and a few marihuana cigarettes — is consistent with possession for personal use, rather than possession for manufacture and sale.
Nor are the facts alleged sufficient to demonstrate the defendant's knowing possession of either the drugs or weapon under a theory of constructive possession. The defendant's mere presence in the apartment at the time the search warrant was executed fails to provide reasonable cause to believe that the defendant exercised dominion and control over the areas in which the contraband was found (see People v Pearson, 75 NY2d 1001). The defendant's sole stated connection to the apartment was her presence on the living room sofa at the time that the drugs were found hidden in the bedrooms and the billy club was found hidden under the living room sofa. The defendant is not alleged to have owned or lived in the apartment; in fact, the complaint states that another individual not present with the defendant when the search warrant was executed claimed that the apartment was his and that he lived there. Moreover, the complaint is devoid of any other facts linking the defendant to the apartment from which to infer her constructive possession of the drugs or weapon ( see People v Rivera, 176 AD2d 498, 500 [1st Dept 1991]). Albeit the billy club was found under the sofa on which the defendant was seated and therefore arguably within her reach, there are no facts from which to infer the defendant's knowledge of the billy club's presence. Without additional evidence connecting the defendant to the apartment, the fact that the defendant was seated on the sofa under which the weapon was found does not establish her dominion and control of the area from which it was seized.
While the People need not, for pleading purposes, disprove every conceivable defense ( see People v Deegan, 69 NY2d 976, 979; People v Barona, 19 Misc 3d 1122A, 3 [Crim Ct, NY County 2008]), conduct which is equally compatible with guilt or innocence will not supply reasonable cause ( People v Carrasquillo, 54 NY2d 248, 254; Barona, 19 Misc 3d 1122A, at 3). Since the facts are insufficient to demonstrate that the defendant exercised the requisite dominion and control over the drugs and billy club necessary to establish her constructive possession of them, the defendant's motion to dismiss for facial insufficiency is granted. The defendant's remaining points are moot.
This constitutes the decision and order of the Court.