Opinion
2008NY091609.
Decided May 26, 2009.
Christopher H. Martin, New York, New York, for defendant.
Maria Strohbehn, Assistant District Attorney, New York, New York, for People.
The defendant, Lawrence Johnson, along with Mikequan Westbrook and Shonn Samer, is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law [" PL"] § 220.03), Criminally Using Drug Paraphernalia in the Second Degree (PL § 220.50) and Unlawful Possession of Marihuana (PL § 221.05). The defendant has moved in an omnibus motion for dismissal for facial insufficiency; disclosure of the search warrant; suppression of physical evidence; and discovery and a bill of particulars. The defendant's motion is decided as follows.
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 § 100.15 100.40; 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 ( Alejandro, 70 NY2d at 138, quoting1966 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 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]). Finally, 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 , 8 Misc 3d 428 , 429). 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 NY Slip Op 50814[U] [Crim Ct, NY County 2008]).
The defendant and co-defendants Westbrook and Samer are charged with being present in the bedroom of an apartment at 260 West 131st Street in New York County at 5:00 p.m. on December 12, 2008 when the deponent police officer executed a search warrant at that location. From that bedroom, the officer recovered two plates with razors, each of which contained cocaine residue. The officer also recovered several clear empty plastic bags which "are consistent with that of packaging narcotics for sale" from the bedroom. The officer additionally recovered a scale as well as two large bags of marihuana and eighteen smaller bags of marihuana from the living room of the apartment.The defendant argues that the complaint is facially insufficient to support the offenses charged and is therefore jurisdictionally defective. Thus he contends that the complaint against him must be dismissed.
A laboratory analysis report filed and served subsequent to the criminal complaint confirms that the substances recovered from the apartment were cocaine and marihuana.
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 220.50(2), "a person is guilty of criminally using drug paraphernalia in the second degree when he knowingly possesses . . . gelatin capsules, glassine envelopes, vials, capsules, or any other material suitable for the packaging of individual quantities of narcotic drugs or stimulants under circumstances evincing an intent to use, or . . . knowledge that some person intends to use [them] for the purpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug or stimulant."
Under PL § 221.05, "a person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana." 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 seized.
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 NY2d 561, 573, citing People v Pearson, 75 NY2d 1001, 1002; see also People v DeJesus , 44 AD3d 464 , 467 [1st Dept 2007]). Dominion and control can be demonstrated in a variety of ways, including proximity of a defendant to contraband ( People v Tirado, 47 AD2d 193, 196 [1st Dept 1975]); defendant's authority over a person who possesses contraband as expressed via instructions ( People v Diaz, 112 AD2d 311 [2d Dept 1985]) or via commands ( People v Rivera, 77 AD2d 538 [1st Dept 1980]); or defendant's control over a premises ( Tirado, 47 AD2d at 195; People v Murdough, 20 Misc 3d 1137 [A], 2008 NY Slip Op 51769[U] [Crim Ct, NY County 2008]).
A defendant's dominion and control over a particular premises has been established under circumstances where the defendant was the sole occupant and in possession of keys to a smoke shop where drug paraphernalia was found in plain view ( Matter of Dirhim A., 178 AD2d 339 [1st Dept 1991]). Similarly, a defendant was demonstrated to have dominion and control over an apartment where drugs and weapons were found where he was the named tenant on the lease and possessed keys to the premises, which he had been observed to frequent on multiple occasions and provided to others as his home address ( People v Torres, 68 NY2d 677). Defendant's possession of a key to premises where contraband is recovered, though not determinative of constructive possession, is nevertheless a significant factor which bolsters the inference of dominion and control ( see Torres, 68 NY2d at 677; People v Sandobar, 191 AD2d 375 [1st Dept 1993] citing People v Armstrong, 160 AD2d 206 [1st Dept 1990] ["persons who . . . possess keys to premises where drugs are found have been found to exercise dominion and control over the drugs"]; Dirhim A., 178 AD2d at 339; People v Robertson, 61 AD2d 600 [1st Dept 1978]; see also Fischel v Baronelli Ltd., 119 Misc 2d 625, 627 [Civ Ct, NY County 1983] ["[traditionally], "keys are considered to be a symbol of possession"]; cf. People v Gambino, 35 NY2d 932; People v Rivera, 176 AD2d 498 [1st Dept 1991]).
In instances where contraband is found in an area where multiple individuals are present, and where no one individual may be said to have dominion and control of the premises, the People have a heavy burden in proving constructive possession ( see In re Andrew U, 5 AD3d 118, 119 [1st Dept 2004]; People v Perez, 125 AD2d 236 [1st Dept 1986]). Constructive possession by a particular individual may be established where the facts demonstrate that the individual had dominion and control over the area where the contraband is found, or where the individual admits to owning or using the item ( see Perez, 125 AD2d at 237-238). However, the defendant's mere access to premises where contraband is found does not constitute dominion and control and thus will not establish constructive possession ( see People v Olivo, 120 AD2d 466 [1st Dept 1986] ["an inference of possession cannot be placed upon so slender a reed as the access a defendant shared with other adults who also could have owned the property"]; see also People v Patel, 132 AD2d 498, 501 [1st Dept 1987]). Analogously, a defendant's presence in a public place is insufficient to prove dominion and control over contraband discovered there ( see People v Pearson, 75 NY2d 1001).
In the instant case, the premises at issue are not a public place but rather a private apartment. There is no question that defendant had access to the premises since he was present inside the apartment where the drugs and alleged drug paraphernalia were seized. Access to premises, however, is a distinct concept from access to contraband which is found on those premises. Here, the defendant not only had access to the premises where the cocaine was found but, under the circumstances alleged, the defendant also had direct access to the cocaine itself.
The defendant is accused of being present, along with two other individuals, in the bedroom of an apartment where two plates with razors, both of which contained cocaine residue, were recovered. The complaint does not specify where these items were found or whether they were in close proximity to the defendant. Nor does the complaint expressly state that the items were found in plain view. Nevertheless, when the complaint is given "a fair and not overly restrictive or technical reading" ( Casey, 95 NY2d at 354), the facts alleged and the reasonable inferences to be drawn from them, when viewed in the light most favorable to the People ( see Barona, 19 Misc 3d 1), provide reasonable cause to believe that the plates and razors with cocaine residue were out in the open in the bedroom and consequently were constructively possessed by each of the defendants who likely had been consuming or had just consumed the drugs contained on them. The existence of two plates with razors containing cocaine residue in the bedroom is circumstantial evidence that at some point in time some quantity of cocaine was present on the plates which, facilitated by the use of the razors, was ingested by some individual or individuals. Because not just one but two plates with razors were present, it is probable that more than one individual participated in ingesting the cocaine. Indeed, as a matter of common knowledge and understanding, use of drugs such as cocaine frequently occurs in social settings where the drugs are often shared among users. Further, while the cocaine was being ingested, it seems certain that the plates with razors must have been out in the open where the users could easily access them. Additionally, once the cocaine on the plates had been consumed, it is entirely believable that the users would not have put away the plates and razors soiled with cocaine residue, but instead would have left them out in the open, perhaps either to clean them later or to use them again. Hence, it is reasonable to infer that when the deponent police officer executed the search warrant in the apartment and entered the bedroom where the defendant and co-defendants were present, the plates and razors containing cocaine residue were still out in the open and therefore in plain view. Indeed, the presence of the defendant and two co-defendants in the bedroom under these circumstances strongly suggests that they in fact were the individuals who consumed the cocaine on the plates.Accordingly, it is reasonable to conclude that the defendant and co-defendants exercised dominion and control over the plates with razors which were in plain view in the bedroom and thus readily accessible to the defendants, and which the defendants had probably been using in order to consume the cocaine they contained. While the defendant may contend that he was merely present in the bedroom at the time the plates and razors containing cocaine residue were recovered and that he was unaware of their existence, the People are not, for pleading purposes, required to disprove every conceivable defense ( see People v Deegan, 69 NY2d 976, 979; Barona, 19 Misc 3d 3). The factual allegations in the complaint on their face are sufficient to establish that the defendant constructively possessed the cocaine seized from the bedroom.
In contrast, the facts alleged are insufficient to provide reasonable cause to believe that the defendant constructively possessed the marihuana which was seized from the living room. The criminal complaint neglects to state precisely where in the living room the marihuana was found or whether it was in plain view. Moreover, the defendant was never observed in the living room where the marihuana was recovered ( see People v Dawkins, 136 AD2d 726 [2d Dept 1988]). Furthermore, the complaint does not assert that the defendant owned, leased or lived in the apartment. Accordingly, there are no evidentiary facts from which to infer that the defendant had a possessory interest in either the marihuana or the area in which it was found.
Finally, the complaint alleges that clear plastic bags, purportedly of a kind used to package narcotics, were recovered from the bedroom where the defendant and co-defendants were present. The circumstances under which the clear plastic bags were found, however, fail to support the charge of Criminally Using Drug Paraphernalia in the Second Degree. Clear plastic bags are not items which are per se illegal to possess ( see People v Rodriguez, 159 Misc 2d 670). Because clear plastic bags have a potentially innocuous use, in order for possession of them to be criminal the possessor must intend or know that the items are intended to be used unlawfully for the purpose of manufacturing, packaging or dispensing a narcotic drug ( see People v Maass, 10 Misc 3d 1051 [A], 2005 NY Slip Op 51872[U] [Crim Ct, NY County 2005]; see also People v Way, 147 Misc 2d 821, 825). Here, the clear plastic bags were found in the bedroom along with two plates with razors containing cocaine residue. The cocaine recovered under these circumstances was clearly possessed for personal use and not for sale. Accordingly, there are no facts from which to infer that the clear plastic bags found in the same room as the cocaine were intended to be used for the packaging of a narcotic drug. The presence of a relatively large amount of marihuana in the living room does not evince an intent to use the plastic bags in the bedroom for the purpose of packaging narcotic drugs. First, the clear plastic bags were not found in proximity to the marihuana but instead were found in a different room. Second, marihuana is not a narcotic drug, and therefore possession of clear plastic bags for the purpose of packaging marihuana does not fall within the purview of PL § 220.50(2) ( see People v Rivera , 21 Misc 3d 588 , 592 [Crim Ct, NY County 2008]).
Since the defendant is not charged with criminally using drug paraphernalia under the theory that he possessed a scale or balance "used or designed for the purpose of weighing or measuring controlled substances, under circumstances evincing an intent to use . . . [or] knowledge that some person intends to use [the scale] for the purpose of unlawfully manufacturing, packaging or dispensing of [a] narcotic drug or stimulant" (PL § 220.50[3]), the presence of the scale in the living room is irrelevant to an analysis of the complaint for facial sufficiency.
Accordingly, the charge of Criminal Possession of a Controlled Substance in the Seventh Degree is facially sufficient and dismissal of that count is denied. The charges of Criminally Using Drug Paraphernalia in the Second Degree and Unlawful Possession of Marihuana are facially insufficient and are dismissed.
REMAINING MOTIONS
The People are directed to file and serve a Voluntary Disclosure Form no later than two weeks prior to trial. The People are directed to disclose the search warrant and underlying affidavit or move for a protective order by the next adjournment date. Decision on defendant's motion to suppress physical evidence is deferred pending the Court's review of the search warrant, underlying affidavit and any minutes of the search warrant application. A Sandoval ruling is reserved to the trial court.