Opinion
2007NY094740.
Decided July 18, 2008.
The defendant, Richard Jackson, together with Alisha August and Richard Castro, is charged with three counts of Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03). The defendant has moved in an omnibus motion for dismissal for facial insufficiency; suppression of physical evidence; an order compelling disclosure of the search warrant and related documents; 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 1122A, 1 [Crim Ct, NY County 2008]).
The instant complaint charges that on December 19, 2007 at approximately 7:45 p.m. inside 107 West 122nd Street, pursuant to the execution of a search warrant, the deponent officer observed the defendant and two co-defendants (Alisha August and Louis Castro) together with a separately charged defendant (Rayne Showers) inside of defendant Showers' bedroom where the officer recovered two pipe/stems containing crack/cocaine residue and one glassine of heroin. The complaint additionally alleges that the defendants appeared to the deponent officer, based upon his training and experience, to be under the influence of a narcotic substance in that defendant August "had bloodshot eyes, had difficulty following directions and had difficulty speaking" and defendants Castro and Jackson had "glassy bloodshot eyes."
Defendant claims that the complaint fails to establish that he knowingly possessed the alleged controlled substances in this case. He argues that facts alleged do not provide reasonable cause to believe that the defendant exercised dominion and control over the crack/cocaine or heroin recovered from the separately charged defendant's bedroom, and therefore do not support the theory that the defendant constructively possessed the controlled substances. Additionally, he contends that the statutory presumption of possession under PL § 220.25 is inapplicable to him since the complaint does not state that the controlled substances were found in plain view or demonstrate circumstances evincing an intent to prepare them for sale. Accordingly, he 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 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 controlled substances 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, 142 AD2d 698 [2d Dept 1998]).
Here, the defendant is alleged to have been present, with two others, in a fourth person's bedroom when a relatively small amount of drugs was recovered from an unspecified location within that room. 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 him. For the presumption to apply, the drugs must both be found in "open view in a room" and "under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare [them] for sale" (PL 220.25). The complaint does not state whether the two pipe/stems containing crack/cocaine residue and glassine of heroin were found in plain view, or whether they were enclosed or secreted in something, such as piece of furniture, closet or even an article of clothing in the room. Even if it were not pure speculation to conclude that the drugs were found in the open, the character and minimal quantity of the items recovered — two pipe/stems with residue and a single glassine — are not consistent with circumstances evincing an intent to prepare the drugs for sale, but are instead suggestive of possession for personal use. Nevertheless, the officer's assertion that the defendant appeared to be under the influence of a narcotic substance because of his "glassy bloodshot eyes," without more, is not circumstantial proof of the defendant's possession of the drugs, particularly without knowing where they were found. "Glassy, bloodshot eyes" are symptomatic of a myriad of physical conditions, many of which are unrelated to substance abuse. This statement, without other evidence that the drugs were being or had been recently consumed by the defendant, is therefore a mere conclusory allegation.
Constructive possession of the alleged controlled substances in this case cannot be inferred from defendant's mere presence in the room where they were found ( see People v Pearson, 75 NY2d 1001). 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 at 3). Since there are insufficient facts to demonstrate that the defendant exercised the requisite dominion and control over the controlled substances necessary to establish his 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.