Opinion
2007NY089638.
Decided May 5, 2008.
ADA Sharah Thomas NY County District Attorney's Office One Hogan Place, For the People.
Nicole Bromberg, Esq. The Legal Aid Society, For the Defense.
The defendant, David Gubbirotti, is charged with Criminally Using Drug Paraphernalia in the Second Degree, PL 220.50, under both subsections (1) and (2). The defendant has moved in an omnibus motion for dismissal for facial insufficiency, as well as for suppression of evidence along with a demand for a bill of particulars and discovery. The 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 non hearsay 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 non hearsay 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 there for be sufficiently alleged" ( People v Sylla, 7 Misc 3d 8, 10 [2d 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). Lastly, "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, 2008 NY Slip Op 50814U, 4 [Crim Ct NY County]).
Regarding the charges against defendant, the Penal Law provides, in pertinent part that A person is guilty of criminally using drug paraphernalia in the second degree when he knowingly possesses or sells: (1) Diluents, dilutants or adulterants, including but not limited to any of the following: quinine hydrochloride, mannitol, mannite, lactose, or dextrose, adapted for the dilution of narcotic drugs or stimulants under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use, the same for purposes of unlawfully mixing, compounding, or otherwise preparing any narcotic drug or stimulant, or [ ] glassine envelopes [ ] under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use, the same for the purpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug or stimulant (PL 220.50 — [2]).
First, it must be alleged that defendant knowingly possessed the prohibited items; and second, it must be alleged that this knowing possession occurred under circumstances evincing an intent to use, or knowledge that another intends to use the items to unlawfully manufacture, package or dispense a narcotic. In the present case, it is alleged that defendant was observed in an automobile along with two other defendants, from which vehicle police officers recovered five hundred unused glassine envelopes, as well as two containers filled with a white powdery substance, one of which was labeled "Q". It is alleged that these items were in a black plastic bag recovered from the floor of said vehicle.
Defendant moves for dismissal of the charges, arguing that the factual allegations in the supporting deposition do not adequately demonstrate that the defendant knowingly and unlawfully possessed drug paraphernalia. He asserts that the allegations fail to establish the element of knowing possession, and do not sufficiently allege that the white powdery substance was, in fact, a dilutant or diluent as required by the statute.
As defined in section 10.00 of the Penal Law, "possess" includes both physical possession as well as the exercise of dominion and control over tangible property. In this case, defendant is not accused of physically possessing drug paraphernalia; rather, it is alleged that he had constructive possession of the items recovered from the floor of the vehicle in which he was seated. Constructive possession requires more than mere presence in a location where contraband is recovered. "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 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" ( People v Manini, 79 NY2d 561, 573). Defendant's mere presence in the general vicinity of contraband, without more, is insufficient to establish dominion and control ( People v Pearson, 75 NY2d 1001), but defendant's presence under certain circumstances, from which inferences may be drawn, may suffice ( see People v Tirado, 47 AD2d 193 [1st Dept 1975], aff'd at 38 NY2d 955).
Allegations of a defendant's dominion and control over an area where contraband is recovered arise often when drugs or drug paraphernalia are recovered from within a premises or from within an automobile, rather than from a defendant's person. Dominion and control can be demonstrated by a variety of circumstances, including proximity of a defendant to contraband ( see Tirado, 47 AD2d); defendant's authority over a person who possesses contraband as expressed via instructions ( see People v Diaz, 112 AD2d 311 [2d Dept 1985]) or via commands ( see People v Rivera, 77 AD2d 538 [1st Dept 1980]); or defendant's control over a premises ( see Tirado, 47 AD2d); defendant's provision of the premises' address as a home address to city agencies ( see People v Vasquez, 142 AD2d 698 [2d Dept 1988]); defendant's sole occupancy of a location where contraband is found in plain view ( see Matter of Dirhim A., 178 AD2d 339 [1st Dept 1991]); or defendant being the named tenant on a lease to premises where contraband is recovered ( see People v Torres, 68 NY2d 677).
More narrowly, dominion and control over contraband located in an automobile may be demonstrated through somewhat different factors, in light of the "unique and mobile nature of automobiles, and their role in drug traffic" (People v Leyva, 38 NY2d 160) (affirming conviction of defendants for drug possession when jury received instructions concerning automobile presumption). For example, dominion and control over contraband in an automobile may be shown via proof that a defendant claimed ownership of the vehicle in question ( see People v Scrimenti, 137 AD2d 773 [2d Dept 1988]); but also may be shown by the fact that a defendant drove the car ( see People v Downs, 195 AD2d 477 [2d Dept 1993]), controlled the itinerary, had access to the trunk and keys, and recently consumed the same type of drugs that were recovered ( see People v Leader, 2006 NY Slip Op 1855, 27 AD3d 901 [3d Dept 2006]).
In a case closely analogous to the one presently before this court, a narcotics conviction based on a theory of constructive possession was affirmed when the defendant was in close proximity to a co-defendant who was trying to kick a bag containing large quantities of heroin and glassines under the front seat of the taxi cab in which they were passengers ( People v Caba, 2005 NY Slip Op 8875 [1st Dept 2005]). As the court noted, "the jury could have reasonably concluded that a person in possession of a large quantity of drugs would not permit another person to be in close proximity unless they were both part of the same criminal enterprise and were joint possessors" ( id., at 292).
Dominion and control is a valid and viable inference flowing from a defendant's close proximity to a large quantity of drugs and drug paraphernalia, inasmuch as "the inference is based largely upon the nature of the commodity and the manner in which its illegal traffic is conducted *** [S]ince their mere possession may subject [a] person to severe criminal consequences, the narcotics traffic is conducted with the utmost secrecy and care" ( People v Reisman, 29 NY2d 278). While penalties for possession of drug paraphernalia may be less than those attendant to possession of drugs, the inferences that may be reasonably drawn are not diminished. Illegal narcotics cannot be packaged for individual sale without drug paraphernalia; drug paraphernalia is therefor an integral part of narcotics trafficking, and close proximity to such items supports the reasonable inference that such persons are trusted members of a drug operation ( see United States v Soto, 959 F2d 1181, 1185 [2d Cir 1992]); see also People v Bundy, 90 NY2d 918, 920).
When a defendant is alleged to have been in close proximity to drug paraphernalia while both the defendant and the drug paraphernalia were within the passenger compartment of an automobile, common sense and everyday experience support an inference that the defendant was not very far away at all from the items, inasmuch as the interiors of most passenger vehicles leave room for little more than the number of passengers for whom the vehicle was designed. Without speculating as to the particular interior dimensions of the vehicle at issue presently, it is safe to say that even if its interior was larger than average, it was nevertheless certainly smaller than most rooms (wherein constructive possession based on close proximity may be shown) in even the most modest of New York apartments.
For purposes of analyzing facial sufficiency in this case, the factual circumstances that support an inference of dominion and control include more than defendant's close proximity to the contraband. First and foremost, the presence of a such a large number of glassines supports an inference that the defendant was joined in a criminal enterprise, and "contemplated a commercial rather than a personal use" ( People v Way, 147 Misc 2d 821, 847 [Sup Ct NY County 1990]). The glassine envelope, like the clear plastic vial, is "the hallmark of an illicit drug exchange" ( People v McRay, 51 NY2d 594, 604). The fact that defendant was in close proximity to five hundred glassine envelopes, not just a few, provides circumstantial proof from which a reasonable inference of knowing possession can be drawn for purposes of facial sufficiency. Close proximity to such a large volume of drug paraphernalia also supports an inference of "[a]n intent to use such drug paraphernalia to package and sell narcotics" ( People v Downs, 195 AD2d 477 [2d Dept 1993]).
Additionally, in the present case, it is alleged that defendant was inside of a car along with two other individuals. Clearly, the proposition that "[p]ossession if joint is no less possession" ( People v Tirado, 38 NY2d 955, 956) applies with equal force to both contraband recovered in automobiles and contraband recovered in apartments or other types of buildings. Thus, while it is true that the automobile presumption set forth in Penal Law220.25does not apply to possession of drug paraphernalia ( People v Jones, 290 AD2d 514 [2d Dept 2002]), it is nevertheless reasonable to infer that since all three of the occupants were in close proximity both to each other and to the contraband, they shared the knowledge of both its presence and its purpose.
Furthermore, it is not simply alleged that defendant was in close proximity to a large quantity of glassines; rather, it is also alleged that he was in close proximity to two containers filled with a white powdery substance, purportedly a dilutant or other substance used to mix, compound or prepare a narcotic drug or stimulant. It is also alleged that one of these two containers was labeled "Q." Given that one of the substances named as a dilutant in PL 220.50 (1) is quinine, there is a reasonable inference to be drawn that the white powdery substance was quinine.
Defendant argues that in the absence of factual allegations regarding the actual composition of the white powdery substance, it is impossible to say that this substance was not "as innocuous as sugar" and that therefor the allegations are insufficient. The language of the statute, however, does not limit an alleged dilutant to one of the substances named therein ( see PL 220.50(1); "A person is guilty of criminally using drug paraphernalia in the second degree when he knowingly possesses or sells diluents, dilutants or adulterants, including but not limited to . . . "). To the contrary, by using the phrase "including but not limited to," the statute clearly sets forth a list that is not exhaustive. Since "words of statutes are the primary indicia of their meaning" ( People v Owusu, 93 NY2d 398, 405; see also McKinney's Con Laws of NY, Book 1, Statutes § 92 [a]), this court will not limit the clear intent of the expansive language chosen by the Legislature. Thus, substances other than those mentioned by name in PL 220.50 (1) may be alleged to be a diluent, dilutant or adulterant within the meaning of the statute.
The use of dilutants both to decrease the potency and to increase the number of individual packages of narcotic drugs prepared for street sale is widely known. The statute recognizes and names certain substances which are commonly used for this purpose and are in fact suitable to that use. Nevertheless, the statute allows for the very real possibility that almost any substance can be adapted for use as a dilutant, regardless of whether it is commonly used or even suitable to that use. Indeed, as reported by the Centers for Disease Control and Prevention, many substances not named in the statute have been used to dilute narcotics for street sale, some which add pharmacologic (and often dangerous) effects, such as scopolamine, dextromethorphan, and lidocaine, and some which do not, such as starch ( see Scopolamine Poisoning among Heroin Users New York City, Newark, Philadelphia and Baltimore, 1995 and 1996, Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Report, Vol 45, No 22, June 7, 1996). In light of the expansive language of the statute, the complaint need not specify the particular substance alleged to be a dilutant for pleading purposes, so long as the factual circumstances alleged support the reasonable inference, as they do here, that the substance is intended to be used for the purpose of unlawfully mixing a narcotic drug.
Here it is alleged here that both containers holding the white powdery substance were found in the same plastic bag as the five hundred unused glassine envelopes. Typically, in order to prepare illegal narcotics for individual sale, both dilutants and containers are required. The fact that the five hundred unused glassine envelopes were in close proximity to the containers holding a white powdery substance bolsters the inference that the white powdery substance was in fact a dilutant. The legislative history of PL 220.50 indicates that it was enacted as a "means of prosecuting individuals engaged in drug trafficking in cases where drug paraphernalia is recovered without additional evidence of possession or sale of a controlled substance" ( People v Maass, 2205 NY Slip Op 51872U [Crim Ct NY County, 2005]). Clearly, this is just such a case.
Finally, the court notes that the vehicle in question is described as a "car" to which the court can only ascribe the plain, everyday meaning it conveys that of a privately owned and operated automobile, to which only acquaintances are usually admitted. Since it is reasonable to infer that all three passengers knew each other, it is reasonable to further infer that they also knew what was in the car with them. This is especially true in light of the fact that the glassines and containers of white powder were recovered from the floor of the car; they were not secreted away under a seat, in a trunk, or glove compartment. Further, it is alleged that the drug paraphernalia was in a "plastic bag", not in any sort of locked container or personal bag, such as a briefcase or backpack that could be construed as belonging to one of the passengers to the exclusion of the others.
While it is certainly true that the People must still meet their burden of proof beyond a reasonable doubt at trial, the much lower burden present at the pleading stage has been met.
REMAINING MOTIONS
Defendant's motions for Huntley, Mapp and Wade/Dunaway hearings are granted. Defendant's request for a bill of particulars and demand for discovery are granted to the extent indicated in the People's response and voluntary disclosure form, and the Sandoval application is deferred to the trial court.
This constitutes the decision and order of the Court.