Opinion
2008NY026448.
Decided August 21, 2008.
The Defendant was represented by Norman P. Bock, Esq. 225 Broadway, 41st Floor New York, New York 10007.
The defendant is charged with criminal possession of marijuana in the fifth degree (PL § 221.10), criminal possession of a controlled substance in the seventh degree (PL § 220.03) and endangering the welfare of a child (PL § 260.10). By Notice of Motion, served and filed on July 18, 2008, he has moved to dismiss the information as facially insufficient and for various other relief.
The complaint states that on April 4, 2008, at about 6:30 p.m. pursuant to a search warrant police officers entered apartment 2A inside of 273 West 114th Street. The complaint alleges that a police officer recovered: 1) one tin of crack/cocaine from a co-defendant, 2) a folded dollar bill containing a quantity of cocaine from the living room floor, 3) forty-two zips of marijuana from the co-defendant's pocket book located in her bedroom, and 4) two zips of marijuana from behind the couch in the living room. The complaint further alleges that the co-defendant was in the dining room of the apartment and that this defendant "was walking into the apartment" when the search warrant was executed. The complaint states that the co-defendant is the tenant of record and that the defendant gave the apartment as his place of residence. The complaint also states that a baby, approximately two or three months old, was found in the dining room. The New York City Criminal Justice Agency Report indicates that the defendant and the co-defendant are siblings. The New York City Police Field Test listing the forty-four bags of marijuana indicates that the estimated total weight of the marijuana was not greater than 1/8 of an ounce (3.54369 grams).
The defendant argues that the complaint fails to allege facts from which this Court may reasonably infer that the defendant actually or constructively possessed any of the contraband found in the apartment. The defendant also argues that the statutory room presumption under Penal Law § 220.25 does not apply.
Defendant's motion is decided as follows:
Motion to Dismiss for Facial Insufficiency
An information is facially sufficient if the factual section contains allegations of an evidentiary nature demonstrating reasonable cause to believe that the defendant committed the offense charged (CPL § 100.15; CPL § 100.40[b]). The facts must be supported by non-hearsay allegations which establish, if true, every element of the charged offense (CPL § 100.40[c]; People v. Alejandro, 70 NY2d 133, 135). The standard for pleading a prima-facie case is lesser than the heavy burden of proof beyond a reasonable doubt required at trial (see People v Henderson, 92 NY2d 677, 680). While the factual allegations of an information must give the defendant sufficient notice to prepare a defense and prevent the defendant from being twice tried for the same offense, they should be given a fair and not overly restrictive reading ( see People v. Casey, 95 NY2d 354, 360). When assessing the facial sufficiency of an accusatory instrument, a court must view the facts in the light most favorable to the People ( see People v. Gonzalez, 184 Misc 2d 262, 708 N.Y.S.2d 564 [App Term, 1st Dept 2000], lv. denied 95 NY2d 835). However, conclusory allegations are insufficient ( see People v Dumas, 68 NY2d 729).
Criminal Possession Marijuana in the Fifth Degree
A person is guilty of criminal possession of marijuana in the fifth degree when he or she knowingly and unlawfully possess marijuana with an aggregate weight of more than twenty-five grams (PL § 221.10). Because the field test indicates that the police recovered less than 3.54369 grams of marijuana the charge of criminal possession of marijuana under Penal Law § 221.10 in count number one is dismissed.
Criminal Possession of a Controlled Substance in the Seventh Degree
A person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly possesses a controlled substance (PL § 220.03). "Possesses" means "to have physical possession or otherwise to exercise dominion or control over tangible property" (PL § 10.00; People v. Sierra, 45 NY2d 56 [definition of possess includes physical and constructive possession]). To demonstrate constructive possession the People must show that the defendant exercised a sufficient level of control over the area in which the contraband is found ( see People v. Manini, 79 NY2d 561, 573-74). Proof of constructive possession may be shown circumstantially ( see People v Torres, 68 NY2d 677), and several individuals may constructively possess contraband simultaneously, provided each individual exercises dominion and control over the object or the area in which the contraband is found (see People v Tirado, 38 NY2d 955; People v Smith, 215 AD2d 940, 941, lv denied 86 NY2d 802; People v Elhadi, 304 AD2d 982, 984, lv denied 100 NY2d 580). Dominion and control may be demonstrated by defendant's proximity to contraband or control over a premises ( see People v Tirado, 47 AD2d 193 [1st Dept 1975] affrd 38 NY2d 955), through 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 tenant of record or possession of a key to a premises where contraband is recovered ( see People v Torres, 68 NY2d 677).
Moreover, even if a defendant did not own or lease the apartment or others also stayed in the bedroom where contraband was found, does not preclude a finding of constructive possession ( see People v Tirado, 38 NY2d 955, 956; People v Hyde, 302 AD2d 101, [2003] [reinstating indictment for possession of drugs and weapons when defendant's presence in bedroom where contraband was in plain view and his own admission that he had entered the apartment to purchase drugs provided sufficient evidence to sustain the indictment]). However, mere presence in an apartment where drugs are found is insufficient to constitute constructive possession ( see People v Headley, 74 NY2d 858, 859; People v Edwards, 206 AD2d 597, lv denied 84 NY2d 907). In Edwards, the appellate court held the proof presented at trial was insufficient to support a theory of constructive possession of contraband, various weapons and drug paraphernalia, where the defendant was observed riding in a vehicle owed by the co-defendant the prior day, while allegedly delivering cocaine, and the defendant was also discovered sleeping on a couch inside the apartment when the police executed a search warrant. Unlike Edwards however, the allegations that the defendant lived in the apartment with his sister at the time cocaine was recovered from the living room support a reasonable inference that the defendant constructively possessed at least some of the contraband. For facial sufficiency purposes, these allegations provide reasonable cause to believe that the defendant constructively possessed contraband found within the apartment ( see People v Tirado 38 NY2d 955; People v. Torres, 68 NY2d 677; People v. Hyde, 302 AD2d 101, supra). Defendant's motion to dismiss the charge of criminal possession of a controlled substance in the seventh degree in count number two for facial insufficiency is denied.
Endangering the Welfare of a Child
Penal Law 260.10 provides that a person is guilty of endangering the welfare of a child when, "being a parent, guardian, or other person legally charged with the care or custody of a child less than eighteen years old, he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming an abused child,' a neglected child,' a juvenile delinquent,' or a person in need of supervision' as those terms are defined in articles ten, three and seven of the family court act." While the complaint lacks any allegations from which this court may reasonably infer that the defendant failed or refused to prevent the two to three month old child from becoming an "abused child," a "juvenile delinquent," or a "person in need of supervision" (see Family Ct Act § 1012[e]; § 301.2; § 712), repeated drug use by a person who is legally responsible for a child is "prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child." (see Family Ct Act § 1046[a][iii]; In re Theresa J., 158 AD2d 364 [1st Dept 1990]). However, the fact that the defendant entered the apartment where he lived with his sister and the fact that a two to three month old child was present when the search warrant was executed do not support a reasonable inference that this defendant was a "parent, guardian or other person legally charged" with the care of the child.
Family Court Act § 1012[g] defines "person legally responsible" as
"the child's custodian, guardian, [or] any other person responsible for the child's care at the relevant time. Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child." A person is legally charged with the care and custody of a child when that person "acts as the functional equivalent of a parent." ( see Matter of Yolanda D., 88 NY2d 790, 796). Additionally, a "person may act as the functional equivalent of a parent even though that person assumes only temporary care or custody of the child, so long as the circumstances of the case otherwise warrant such a determination." ( see People v. Carroll, 93 NY2d 564, 570). However, criminal liability may only attach where facts are alleged from which a court may infer that the defendant assumed parental responsibilities ( see People v. Myers, 210 AD2d 855 [1st Dept. 1994] [affirming dismissal of indictment on charges of manslaughter in the second degree and endangering the welfare of a child where defendant lived with and financially contributed to the household but where there was no indication that the defendant assumed responsibility for, or control over, the child]; People v. Goddard, 206 AD2d 653 [1st Dept. 1994] [affirming dismissal of indictment on charges of criminally negligent homicide and endangering the welfare of a child where there was no evidence that the defendant, a babysitter, was aware that the child had not been given his medication and was suffering from life threatening dehydration]). The complaint lacks any allegations concerning a connection between the defendant and the child. The baby's mere presence in defendant's apartment when he walked in is insufficient to support a reasonable inference that the defendant had any legal responsibility for the child. Defendant's motion to dismiss the charge of endangering the welfare of a child in the third count is granted.
The dismissal of the count of does not bar reprosecution by the People under a new properly pleaded accusatory instrument ( see People v. Nuccio, 78 NY2d 102).
Motion to Suppress Evidence
The complaint indicates that the police entered the apartment pursuant to a search warrant. This case is next on the calendar in Part SA on September 4, 2008. The court action sheet entry of August 4, 2008, shows that the People were directed to disclose the search warrant and underlying affidavit or to move for a protective order by September 4, 2008. Any suppression issues as to specific evidence are deferred until the issues concerning the search warrant are decided.
Motion for a Bill of Particulars and Discovery
Additionally, on or before September 4, 2008, the People are directed to file with the court and copy to the defense, a Voluntary Disclosure Form ("VDF") describing precisely what evidence they intend to offer against this defendant on their direct case. As to each item of physical evidence the People are to specify whether the evidence was seized pursuant to the search warrant and under what theory of possession the People intend to introduce the item of physical evidence at trial.
Sandoval Motion
Defendant's motion to preclude the use of defendant's criminal history or uncharged bad acts is referred to the trial court.
The People are reminded of their continuing obligation to supply Brady material.
To the extent not addressed herein, the remainder of the motions are denied. This case is next on in Part SA on September 4, 2008. A copy of this decision is being mailed to the parties.
This opinion constitutes the decision and order of the court.