Opinion
2009NY085293.
Decided on March 26, 2010.
Cyrus Vance, District Attorney (Shira Arnow, Esq., of counsel), for the People.
Robert T. Perry, Esq., for Defendant.
Defendant is charged with Prostitution (PL § 230.00), Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03) and Criminally Using Drug Paraphernalia in the Second Degree (PL § 220.50(2)).
In a pretrial omnibus motion, Defendant seeks an Order:
1)Dismissing the charges against Defendant for facial insufficiency, pursuant to CPL §§ 100.40, 170.30(1)(a), and 170.35(1)(a);
2)Suppressing any and all tangible evidence seized, or, in the alternative, granting a Mapp/ Dunaway hearing;
3)Suppressing noticed statements allegedly made by Defendant, or, in the alternative, granting a Huntley hearing;
4)Suppressing noticed identification testimony, or, in the alternative, granting a Wade hearing;
5)Precluding statements allegedly made by Defendant or any identification testimony which have not been noticed to Defendant, pursuant to CPL § 710.30;
6)Granting a Bill of Particulars and Discovery and inspection, pursuant to CPL §§ 200.95, 100.45 and 240.40;
7)Precluding the People from using at trial any evidence of Defendant's prior convictions or bad acts, pursuant to People v. Sandoval, 34 NY2d 371, 314 NE2d 413, 357 NYS2d 849 (1974), and its progeny;
8)Reserving rights for further motions; and
9)Granting such additional relief as the Court deems just and proper.
The People filed a Response and Voluntary Disclosure Form ("VDF") dated February 5, 2010. The People filed a cross-motion for reciprocal discovery.
The Complaint, signed by Detective Nicholas Lagano, states, in relevant part:
Deponent states that the deponent is informed by undercover officer shield 136 that the defendant agreed to engage in fellatio with the undercover officer in exchange for $175 dollars.
Deponent states that deponent is informed by U/C shield number 161, that the informant observed the defendant arrive to the above describe location inside of a 2008 Chevy Sedan with the defendant in the passenger seat. Deponent further states that the deponent is informed by Detective Juan Rodriguez, shield 04435, of the Vice Enforcement Division, that the informant recovered two (2) glassines of heroin and approximately one hundred (100) empty small glassines from inside of the rear compartment of above described vehicle.
In addition to this Complaint, the People have served and filed supporting depositions signed by Juan Rodriguez, Undercover Officer Shield 00136, and Undercover Officer Shield 00161.
Motion to Dismiss Prostitution Charge for Facial Insufficiency
Defendant moves to dismiss the prostitution charge for facial insufficiency arguing that the allegations in the complaint fail to establish a prima facie showing that Defendant actually agreed to engage in a sexual act for a fee. Defendant relies on People v. A.M., 2001 NY Slip Op. 40124(U) (Crim. Ct. NY Co. 2001), in support of the notion that merely reciting the terms of the agreement in the complaint does not "provide a reliable basis to believe the defendant actually entered into and accepted the terms of the agreement." People v. A.M. at 4. Defendant also relies on People v. A.S., 179 Misc 2d 569, 685 NYS2d 573 (Crim. Ct. NY Co. 1998), for the proposition that the term "agreed" used in the complaint fails to establish Defendant's intent to form an agreement. Therefore, Defendant argues that the allegations are conclusory and that the charge of prostitution must be dismissed for facial insufficiency.
The People argue that the factual allegations in the complaint track the exact language of PL § 230.00 and establish that Defendant offered to perform a sexual act in consideration for a sum of money, and are therefore facially sufficient to support the charge of prostitution.
The word "agree" is neither ambiguous nor vague. Its definition, particularly as used in a legal complaint, such as in this case, has a long-settled meaning, which clearly encompasses the specific acts alleged in this case. Notably, Defendant does not provide the Court with any proposed language or specific allegations which she contends should have been included in the Complaint.
The dictionary definition of "agree" is: "1a: To concur in (as an opinion): ADMIT, CONCEDE b: to consent to as a course of action ." Merriam-Webster Online. 22 March 2010 ."
Black's Law Dictionary (8th ed. 2004) defines "agree" as: "1. To unite in thought; to concur in opinion or purpose.
2. To exchange promises; to unite in an engagement to do or not do something."
The Court takes note that in recent times, it has been claimed that certain words included in criminal complaints are conclusory, thereby rendering the complaint deficient. While the term "agree" may be subject to much analysis in the civil context ( see e.g. Williston on Contracts 4th § 1:3, Corbin on Contracts § 1:9), we hold that the word "agree," and its conjugations, when read in the context of a Criminal Court Complaint, is neither conclusory, vague, nor ambiguous, and given it ordinary meaning in context, will allow conversion of a Criminal Court Complaint into a legally sufficient Information to support prosecution of the Defendant.
We find the cases cited by Defendant to be unpersuasive. In People v. A.M., supra, the court was concerned that "due to the ambiguities attendant to such encounters," an offer for consensual sex might be interpreted by a police officer as an act of prostitution. Id at 4. Here, where the complaint indicates that "defendant agreed to engage in fellatio with the undercover officer in exchange for $175 dollars," we find little ambiguity in the description and the nature of the encounter. Defendant also relies on People v. A.S., supra, insofar as it states that an "allegation that defendant agreed' to an act of prostitution is merely conclusory" In People v. Allen, 92 NY2d 378, 681 NYS2d 216 (1998), the Court of Appeals rejected the defendant's argument that the term "solicit" is conclusory and therefore insufficient to support a charge of criminal solicitation in the fifth degree. More recently, the Appellate Term of the 2nd and 11th Judicial Districts, following People v. Allen, supra, concluded "that such terms as offer and agree' as alleged in the accusatory portion are so inherently "evidentiary in character" that their mere recapitulation in the factual portion creates a facially sufficient pleading, the particulars of which are evidentiary matters appropriate for trial." People v. Hilo, 4 Misc 3d 132(A), 791 NYS2d 872 (2004). Accord People v. Polianskaia, 189 Misc 2d 237, 730 NYS2d 685, (Crim. Ct. NY Co. 2001). We agree. Therefore, we decline to dismiss the charge of prostitution for facial insufficiency.
Furthermore, in People v. A.M., supra, the court notes that neither the complaint nor the VDF contains any statements whatsoever allegedly made by Defendant. Here, the VDF indicates that Defendant allegedly stated, "Yes it's $175 for me to give you head, and you have to wear a condom."
Motion to Dismiss Criminal Possession of a Controlled Substance and Criminally Using Drug Paraphernalia Charges for Facial Insufficiency
Defendant also moves to dismiss the drug charges for facial insufficiency. Defendant argues that while PL § 220.25(1) states that "[t]he presence of a controlled substance in an automobile is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found," there is no allegation that Defendant was actually in the vehicle when the contraband was found. Defendant points to the language of the complaint, which states that while she did arrive inside of a 2008 Chevy Sedan (the same sedan from which the drugs and drug paraphernalia were recovered), she was arrested inside of 659 9th Avenue. Furthermore, Defendant points out that there is no allegation that the vehicle was under constant observation from the time Defendant exited the vehicle to the time the vehicle was searched. Hence, Defendant argues, the contraband could have found its way into the vehicle at some point after she exited. Defendant points to People v. Spillman, 309 NY 295, 130 NE2d 625 (1955), which involved a similar statutory automobile presumption in the context of firearm possession. In Spillman, supra, the defendant's absence from his wife's automobile when the weapon was found rendered the presumption inapplicable. Defendant also cites People v. Crenshaw, 202 Misc. 179, 117 NYS2d 202 (Bronx Co.Ct. 1951), also involving firearm possession, in which the vehicle's occupants were not chargeable under the automobile presumption because the vehicle was left unattended and unlocked for forty minutes before it was searched. Furthermore, Defendant argues that an allegation of her mere presence in the vehicle at some time before the drugs and drug paraphernalia were found fails to establish
Defendant's dominion and control over the contraband, and thus fails to establish constructive possession of the drugs and drug paraphernalia. Defendant therefore argues that the charges of Criminal Possession of a Controlled Substance in the Seventh Degree and Criminally Using Drug Paraphernalia in the Second Degree must be dismissed as facially insufficient.
The People argue that, under the car presumption theory, Defendant constructively possessed the drugs and paraphernalia recovered from the vehicle and hence the charges are supported by sufficient factual allegations.
Defendant is charged with PL § 220.03, which states that "[a] person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance." Defendant is also charged with PL § 220.50(2), which requires that she "knowingly [possess]" drug paraphernalia.
Possession, a common element of the statutes under which Defendant is charged, is defined in the criminal law as "[t]o have physical possession or otherwise to exercise dominion or control over tangible property." PL § 10.00(8).
The presumption allowed by PL § 220.25(1), which applies to "each and every person in the automobile at the time such controlled substance was found," is a rebuttable inference which may support the People's prima facie case, but may also be rejected by the trier of fact. People v. Levya, 38 NY2d 160, 379 NYS2d 30, 341 NE2d 546 (1975). Here, however, the People's reliance upon PL § 220.25(1) is unavailing, since there are no factual allegations that Defendant was in the automobile at the time the contraband was discovered.
Where a Defendant was not in actual possession of the contraband, the People are required to show that the Defendant was in constructive possession of the illegal substance, meaning that the defendant "exercised some dominion and control' over the goods or the premises where the goods were found." People v. Fetter, 201 AD2d 500, 607 NYS2d 381 (2nd Dept. 1994); People v. Manini, 79 NY2d 561, 569, 594 NE2d 563, 573, 584 NYS2d 282, 288 (1992); People v. Torres, 68 NY2d 677, 496 NE2d 684, 505 NYS2d 595 (1986). The mere allegation that Defendant exited an area, and that contraband was found somewhere therein, is insufficient to establish Defendant's dominion and control over the illegal substances. See People v. Pearson, 75 NY2d 1001, 556 NE2d 1076, 557 NYS2d 269 (1990) (evidence that defendant was seen exiting back room of grocery store was insufficient to establish a constructive possession of the drugs lying in plain view in that room). See also People v. Scott, 206 AD2d 392, 614 NYS2d 739 (2nd Dept. 1994) (the People failed to prove that defendant was in constructive possession of cocaine found in basement where there was no evidence that he resided, frequented, or had control over basement in which cocaine was found, but was merely present there).
Here, where Defendant exited the vehicle and was arrested elsewhere, the automobile presumption, PL § 220.25(1), does not apply. Moreover, there are no allegations of Defendant's dominion and control over the drugs or drug paraphernalia. We therefore find that the Complaint fails to adequately allege constructive possession. However, the defects in the Complaint may be curable pursuant to CPL § 170.35(1), and we grant the People leave to supersede.
Motion to Suppress Tangible Evidence
Defendant moves to suppress all tangible evidence seized from Defendant's person as well as evidence seized from the vehicle in which Defendant was a passenger on the grounds that the search violated Defendant's rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article 1, Section 12 of the New York State Constitution. Defendant also argues that the factual information relied upon by the arresting officers, insofar as they relied on communications from fellow officers, did not come from a reliable source who had a reliable basis of knowledge, citing People v. Parris, 83 NY2d 342, 632 NE2d 870, 610 NYS2d 464 (1994), and People v. Lypka, 36 NY2d 210, 326 NE2d 294, 366 NYS2d 622 (1975). Further, Defendant argues that the police lacked probable cause for the arrest and that any tangible evidence obtained is therefore inadmissible. The People counter that they intend to offer in their direct case at trial tangible evidence, and submit that such evidence was lawfully obtained and deny all allegations to the contrary.
The People argue Defendant is not entitled to a hearing, because Defendant's motion does not contain the "sworn allegations of fact" necessary to warrant a suppression hearing, citing CPL § 710.60(1) and People v. Mendoza, 82 NY2d 415, 624 NE2d 1017, 604 NYS2d 922 (1993), et. al. Moreover, the People argue, Defendant's motion does not establish a factual dispute requiring a hearing. CPL § 710.60(1) and People v. Mendoza, supra . Thus, the People contend, Defendant's motion to suppress certain post-arrest statements and for a Mapp/ Dunaway hearing should be denied.
Our review of the case file reveals that the People intend to introduce at trial certain tangible evidence allegedly obtained from Defendant pursuant to her arrest. Defendant's request for a hearing to determine the admissibility of any tangible evidence, as well as to determine the existence of probable cause for her arrest, is granted pursuant to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) and Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) et al.
Motion to Suppress Statements
Defendant moves, pursuant to CPL § 710.20, for suppression of any and all statements allegedly made by Defendant to any public servant or servants engaged in law enforcement, or in the alternative, a hearing to determine whether such statements should be suppressed. Defendant argues that any statements made were obtained in violation of the Fourth, Fifth and Fourteenth Amendments of the US Constitution and Article I, Sections 6 and 12 of the New York State Constitution, and involuntarily made within the meaning of CPL § 60.45. Further, Defendant argues that the police lacked probable cause for the arrest and that the noticed statements are therefore inadmissible. Thus, Defendant argues, the statements were involuntary and must be suppressed, or a hearing granted to litigate the issues.
The People counter that they intend to offer in their direct case at trial statements that Defendant made to a law enforcement officer, and submit that Defendant's statements are res gestae and should not be the subject of a hearing.
Our review of case file reveals that statement notice was given by the People at arraignment pursuant to CPL § 710.30(1)(a), and the VDF contains an oral statement allegedly made by Defendant to a public servant on November 5, 2009. Defendant's request for a hearing to determine the voluntariness of any statements made by Defendant to police officers is granted pursuant to People v. Huntley, 15 NY2d 72, 204 NE2d 179, 255 NYS2d 838 (1965).
Motion to Suppress Identification
Defendant contends that the identification for which the People gave notice was obtained in violation of the Fourth, Fifth and Fourteenth Amendments of the US Constitution and Article I, Sections 6 and 12 of the New York State Constitution. Defendant further argues that the identification procedure was unduly suggestive. Thus, Defendant argues that the noticed identification evidence should be suppressed, or, in the alternative, a Wade hearing granted to litigate the issues.
The People controvert Defendant's allegations of improperly suggestive procedures, citing People v Wharton, 74 NY2d 921, 549 NE2d 462, 550 NYS2d 260 (1989), for the proposition that the identification constituted "the ordinary and proper completion of [defendant's arrest process]." Id at 922. Thus, it is the People's position that Defendant's motion to suppress identification testimony and for a Wade hearing should be denied.
Identification notice is required if the Police or Prosecutor arrange a confrontation, photographic array or other display for the purpose of establishing identity. People v. Gissendanner, 48 NY2d 543, 399 NE2d 924, 423 NYS2d 893 (1979). The statute serves the purpose of giving Defendant the opportunity to move for a pretrial hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), where the defendant's rights might have been impaired by an unduly suggestive lineup or by another Police-arranged pre-trial identification. People v. Gissendanner, supra.
Here, where the identification was pre-arranged, Defendant has established the right to a Wade hearing. Defendant's request for a Wade hearing is therefore granted.
Preclusion of Undisclosed Statements and Identification Testimony
Defendant moves for an order precluding statements allegedly made by the defendant which have not been noticed to Defendant, as well as any identification testimony which has not been noticed to Defendant, pursuant to CPL § 710.30. Since there is no indication that the People intend to introduce any statement or identification evidence beyond that which is contained in the VDF, this branch of Defendant's motion is denied with leave granted to re-submit should the People seek to introduce any such evidence at trial.
Motion for a Bill of Particulars and Discovery
Defendant's motion for a Bill of Particulars and additional discovery is denied. The VDF is sufficient.
The People are reminded of their continuing obligation to supply Brady material.
Defendant's Request for a Sandoval Hearing
The branch of the defendant's motion seeking a Sandoval hearing and notice from the People of specific instances of prior uncharged criminal, vicious or immoral conduct is granted to the extent that the Defendant has leave to re-submit this portion of the motion to the trial judge.
Cross Motion for Reciprocal Discovery
The People's cross-motion for reciprocal discovery is granted.
Reservation of Rights
The branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL 255.20 (3).
This opinion constitutes the decision and order of this Court.