Opinion
2009-12-10
The PEOPLE of the State of New York v. Wilnara PORTORREAL, Defendant.
, J.
The defendant, Wilnara Portorreal, is charged with Criminal Possession of Marihuana in the Fourth Degree, Penal Law [“PL”] § 221.15, Endangering the Welfare of a Child, PL § 260.10(1) and Unlawful Possession of Marihuana, PL § 221.05. The defendant has moved in an omnibus motion to dismiss the charges for facial insufficiency and for other relief. On October 5, 2009, the Court rendered a written decision and order with respect to all branches of the defendant's motion except that pertaining to facial insufficiency. On that same date, the Court orally denied the defendant's motion to dismiss for facial insufficiency. The following written decision explains the basis for the Court's latter ruling.
FACIAL SUFFICIENCY
In order to be facially sufficient, an information must substantially conform to the formal requirements of Criminal Procedure Law [“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[3] & 100.40[1]; see People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986]; see also People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ). The complete failure to plead an element of a crime is a nonwaivable jurisdictional defect ( see People v. Casey, 95 N.Y.2d 354, 356, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]; Alejandro, 70 N.Y.2d at 137–138, 517 N.Y.S.2d 927, 511 N.E.2d 71).
Reasonable cause to believe that the defendant committed the offense charged exists when “evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” (CPL § 70.10[2] ). The requirement of nonhearsay allegations has been described as a “much more demanding standard” than a showing of reasonable cause alone ( Alejandro, 70 N.Y.2d at 138, 517 N.Y.S.2d 927, 511 N.E.2d 71, quoting 1966 Report of Temp. Commn. on Revision of Penal Law and Crim. Code, Staff Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt ( People v. Henderson, 92 N.Y.2d 677, 680, 685 N.Y.S.2d 409, 708 N.E.2d 165 [1999]; People v. Hyde, 302 A.D.2d 101, 754 N.Y.S.2d 11 [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, 792 N.Y.S.2d 764 [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” ( Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233; see also People v. Konieczny, 2 N.Y.3d 569, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004]; People v. Jacoby, 304 N.Y. 33, 38–40, 105 N.E.2d 613 [1952]; People v. Knapp, 152 Misc. 368, 370, 274 N.Y.S. 85 [1934], affd. 242 App.Div. 811, 275 N.Y.S. 637; People v. Allen, 92 N.Y.2d 378, 385, 681 N.Y.S.2d 216, 703 N.E.2d 1229 [1998]; People v. Miles, 64 N.Y.2d 731, 732–733, 485 N.Y.S.2d 747, 475 N.E.2d 118 [1984]; People v. Shea, 68 Misc.2d 271, 272, 326 N.Y.S.2d 70 [1971]; People v. Scott, 8 Misc.3d 428, 429, 797 N.Y.S.2d 847 [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, 2008 N.Y. Slip Op. 50814(U), 2008 WL 1809691 [Crim. Ct., N.Y. County 2008] ).
The instant information alleges that at about 8:20 a.m. on April 1, 2009, Police Officer Nicholas Alexakis of the Queens Narcotics Borough executed a search warrant at the ground floor of 161–08 43rd Avenue in Queens County. Prior to entering the location, the officer observed the defendant enter the premises. Further, upon entering the premises, Officer Alexakis smelled a strong order of marihuana emanating from the premises. The officer observed separately-apprehended Giovanni Portorreal, to whom the defendant stated she was married, lying on a bed in one of the bedrooms. Officer Alexakis recovered two large ziplock bags containing marihuana from a dresser next to a bed. Inside one of the ziplock bags was approximately $100 in U.S. currency. From the same dresser, the officer also recovered approximately fifteen (15) clear plastic or glass tubes, each containing marihuana. Officer Alexakis additionally recovered approximately 135 empty clear plastic or glass tubes from the premises, about half of which were found in the bedroom dresser and the other half in a kitchen cabinet. From on top of a kitchen cabinet, directly below the ceiling, the officer recovered a plastic container containing two smaller ziplock bags of marihuana as well as numerous empty ziplock bags and a digital scale. Officer Alexakis concluded that the substance recovered was marihuana with an aggregate weight of more than two ounces based upon his training and experience as a police officer in the identification and packaging of controlled substances and marihuana. In fact, separately-apprehended Giovanni Portorreal admitted that the marihuana in the ziplock bags recovered from the bedroom dresser weighed approximately two ounces. While Officer Alexakis was executing the search warrant, he observed “a female toddler” in another bedroom. According to Officer Alexakis, all of the areas from which the marihuana and other paraphernalia were recovered “were unsecured and accessible to all occupants” of the premises. The defendant admitted that she is married to separately-apprehended Giovanni Portorreal and that she lives in the premises with him and their children, including the female toddler, whom she identified as their three year old daughter Disely Portorreal.
The defendant argues that the charge against her of Endangering the Welfare of a Child must be dismissed since she “entered the apartment contemporaneously with the police when they executed their search warrant” and therefore “could not have been smoking marihuana in front of her child.” Additionally, she contends that the charge against her of Criminal Possession of Marihuana in the Fourth Degree and Unlawful Possession of Marihuana must be dismissed because “she had just entered the premises,” “none of the marihuana was found in open view” and the information does not allege that she was in the same rooms from which the marihuana was recovered.
Under Penal Law § 221.15, “a person is guilty of criminal possession of marihuana in the fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than two ounces.” Under Penal Law § 221.05, “a person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana.” Under Penal Law § 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 marihuana seized from her residence.
Constructive possession requires more than mere presence in a location where contraband is discovered. “In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised dominion or 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” ( People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992], citing People v. Pearson, 75 N.Y.2d 1001, 1002, 557 N.Y.S.2d 269, 556 N.E.2d 1076 [1990]; see also People v. DeJesus, 44 A.D.3d 464, 467, 843 N.Y.S.2d 294 [1st Dept. 2007] ). A defendant's knowledgeable possession of contraband may be established by circumstantial evidence demonstrating the defendant's control over premises where the contraband is found ( see People v. Tirado, 47 A.D.2d 193, 194–195, 366 N.Y.S.2d 140 [1st Dept. 1975], aff'd, 38 N.Y.2d 955, 384 N.Y.S.2d 151, 348 N.E.2d 608 [1976] ).
Under Penal Law § 260.10(1), “a person is guilty of endangering the welfare of a child when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health.”
The aim of the Endangering the Welfare of a Child statute is to protect “the physical health, morals and well-being of children....” ( People v. Bergerson, 17 N.Y.2d 398, 401, 271 N.Y.S.2d 236, 218 N.E.2d 288 [1966] ). The statute is broad in scope and is not limited to protection against the perpetration of sexual offenses upon children but in fact extends “to other dangers as well” ( id.; see also People v. Cruz, 152 Misc.2d 436, 438–439, 576 N.Y.S.2d 978 [Crim. Ct., N.Y. County 1991] ). Moreover, as “the care of children is a sacred trust” ( New York v. Ferber, 458 U.S. 747, 757, 102 S.Ct. 3348, 73 L.Ed.2d 1113 [1982] ), a court cannot and should not “await broken bone or shattered psyche before extending its protective cloak around [a] child” ( In the Matter of Priscilla Cruz, 121 A.D.2d 901, 903, 503 N.Y.S.2d 798 [1st Dept. 1986] ). The role of the court as the protector of children is “a role as essential as protecting the rights of the accused [because] the courts have a compelling duty to protect the interests of children” ( People v. Doe, 137 Misc.2d 582, 585, 521 N.Y.S.2d 636 [Crim. Ct., N.Y. County 1987] ).
In order to sustain a conviction for Endangering the Welfare of a Child, the People need not prove that the defendant committed an affirmative act directed at a child ( see People v. Hitchcock, 98 N.Y.2d 586, 591, 750 N.Y.S.2d 580, 780 N.E.2d 181 [2002]; People v. Johnson, 95 N.Y.2d 368, 371–372, 718 N.Y.S.2d 1, 740 N.E.2d 1075 [2000] ). Furthermore, actual harm to the child need not result from the defendant's actions for criminal liability to attach ( see Johnson, 95 N.Y.2d at 371, 718 N.Y.S.2d 1, 740 N.E.2d 1075; see also People v. Duenas, 190 Misc.2d 801, 742 N.Y.S.2d 468 [App. Term, 2d Dept. 2002] ). Penal Law § 260.10(1) proscribes conduct “which a defendant knows will present a likelihood' of harm to a child (i.e., with an awareness of the potential for harm”) ( id. at 372, 718 N.Y.S.2d 1, 740 N.E.2d 1075) (emphasis added). Therefore, “a defendant must simply be aware that the conduct may likely result in harm to a child, whether directed at the child or not” ( id., citing PL § 15.05[2]; see also People v. Simmons, 92 N.Y.2d 829, 830, 677 N.Y.S.2d 58, 699 N.E.2d 417 [1998] ). Additionally, the harm as a result of the defendant's actions must be likely and not merely possible ( see id. at 371, 718 N.Y.S.2d 1, 740 N.E.2d 1075; Duenas, 190 Misc.2d at 803, 742 N.Y.S.2d 468).
The offense of Endangering the Welfare of a Child may be committed by one act or by multiple acts and may be characterized as a continuing offense over a period of time ( see People v. Keindl, 68 N.Y.2d 410, 421, 509 N.Y.S.2d 790, 502 N.E.2d 577 [1986] ). Hence, a defendant may be guilty of this offense by committing “a series of acts, none of which may be enough by itself to constitute the offense but each of which when combined make out the crime” ( id.; see also Simmons, 92 N.Y.2d at 831, 677 N.Y.S.2d 58, 699 N.E.2d 417; Cowley v. People, 83 N.Y. 464, 472 [1881] ). Similarly, simultaneously coexisting events and circumstances, when taken as a whole, may constitute Endangering the Welfare of a Child, even if each circumstance, when taken in isolation, might not ( see Hitchcock, 98 N.Y.2d at 592, 750 N.Y.S.2d 580, 780 N.E.2d 181; see also People v. Hogle, 18 Misc.3d 715, 718–719, 848 N.Y.S.2d 868 [Crim. Ct., N.Y. County 2007] ).
In reviewing a charge of Endangering the Welfare of a Child for legal sufficiency, “each case is fact specific” ( Johnson, 95 N.Y.2d at 373, 718 N.Y.S.2d 1, 740 N.E.2d 1075) and the allegations must be analyzed in the context of “the whole incident” ( Hogle, 18 Misc.3d at 718, 848 N.Y.S.2d 868, citing People v. Tichenor, 89 N.Y.2d 769, 776, 658 N.Y.S.2d 233, 680 N.E.2d 606 [1997] ). The court must look to the “confluence of events and circumstances” ( Hitchcock, 98 N.Y.2d at 591, 750 N.Y.S.2d 580, 780 N.E.2d 181), including both the defendant's acts and his omissions ( see Cowley, 83 N.Y. at 472). Some examples of conduct which has been held likely to be injurious to the physical, mental or moral welfare of children include possessing loaded and unloaded firearms and ammunition which were fully accessible to children ( see Hitchcock, 98 N.Y.2d at 591, 750 N.Y.S.2d 580, 780 N.E.2d 181); engaging in domestic violence in front of children ( see Johnson, 95 N.Y.2d at 373, 718 N.Y.S.2d 1, 740 N.E.2d 1075); repeatedly directing vulgar remarks at a toddler ( see Simmons, 92 N.Y.2d at 831, 677 N.Y.S.2d 58, 699 N.E.2d 417); and providing beer to teenaged boys ( see Bergerson, 17 N.Y.2d at 403, 271 N.Y.S.2d 236, 218 N.E.2d 288).
Here, the aggregate weight of the marihuana seized exceeded two ounces. The nature and quantity of the marihuana was such that Officer Alexakis smelled its “strong odor” as he entered the premises. The presence of so much marihuana in close proximity to materials suitable for packaging and weighing it—135 clear tubes, numerous ziplock bags and a digital scale—suggests that the marihuana was being packaged for sale in the apartment. Moreover, the vast number of packaging materials recovered, considered in conjunction with the sum of U.S. currency found in one of the large bags of marihuana, bolsters the inference that the marihuana was not possessed for mere personal use by the occupants of the premises but in fact was possessed with the intent to prepare and package it for sale. Finally, regardless of the fact that the drugs and paraphernalia were in closed containers at the time they were recovered, given the quantity of materials involved, it is reasonable to infer that the preparation and packaging of the marihuana for sale was taking place in open view of the occupants of the premises, including the children.
It may be presumed that as an adult residing in the premises, the defendant had both knowledge and possession of the marihuana found there ( see Tirado, 47 A.D.2d at 195, 366 N.Y.S.2d 140). “Possession generally suffices to permit an inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands, on his person, in his vehicle or on his premises” ( id., citing People v. Reisman, 29 N.Y.2d 278, 286–287, 327 N.Y.S.2d 342, 277 N.E.2d 396 [1971] ). In particular, where narcotics are found on premises under a defendant's control, it may be inferred that the defendant had knowledgeable possession of the narcotics ( see id. [internal citations omitted] ). This inference is largely based upon the nature of the commodity and the manner in which it is trafficked ( see id.). Narcotics are of great value to the person possessing them because of the exorbitant sums for which they are sold on the black market ( see id.). Moreover, since mere possession of narcotics may subject a person to severe criminal consequences, the trafficking of narcotics is conducted with extreme care and secrecy ( see id.). Consequently, “human experience teaches us that narcotics are rarely, if ever, found unaccountably in a person's living quarters” ( id.). Although marihuana is not a narcotic drug