Opinion
2017BX013479
10-18-2017
The PEOPLE of the State of New York, Plaintiff, v. Rene WELLINGTON, Defendant.
For the People: Bronx District Attorney's Office by ADA Steven J. Fields, Esq. For the defendant: The Legal Aid Society by Rumzi S. Araj, Esq.
For the People: Bronx District Attorney's Office by ADA Steven J. Fields, Esq.
For the defendant: The Legal Aid Society by Rumzi S. Araj, Esq.
Mary L. Bejarano, J.
The defendant is charged with two counts of criminal possession of a controlled substance in the seventh degree (CPL 220.03). By motion dated May 11, 2017, the defendant seeks an order for: (1) dismissal of the charges for facial insufficiency ( CPL 710.30[1][a] ; 170.35); (2) suppression of physical evidence, or the alternative, Mapp/Dunaway hearings; (3) disclosure of the search warrant and supporting materials; (4) a Sandoval hearing; (5) preclusion of evidence not supplied in People's response to defendant's request for a Bill of Particulars and Demand to Produce.
The People's response, submitted on July 18, 2017, (1) opposes the granting of any hearings; (2) opposes the unsealing of the search warrant and its supporting materials. However, with respect to the defendant's motion to dismiss for facial insufficiency, the People have filed neither an opposition nor a superseding information.
In their July 18th response, the People stated that they would file a superseding information. Despite having over two months to file a superseding information, the People have not offered any explanation for their inability to do so.
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The court, having reviewed defendant's moving papers, the People's response, and all court documents contained within the court file, concludes as follows:
MOTION TO DISMISS FOR FACIAL INSUFFICIENCY
A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution ( People v. Case , 42 NY2d 98, 99 [1977] ). "An information serves the same role in a misdemeanor prosecution as a grand jury indictment does in a felony case: it ensures that a legally sufficient case can be made against the defendant" ( People v. Dumay , 23 NY3d 518, 522 [2014] ; People v. Alejandro , 70 NY2d 133 [1987] ). A legally sufficient misdemeanor information must substantially conform to the requirements prescribed in CPL 100.15 ( CPL 100.40[1][a] ). Additionally, the factual part of a misdemeanor information "must allege facts of an evidentiary character demonstrating reasonable cause to believe that the defendant committed the crime charged." ( People v. Dumas , 68 NY2d 729, 731[1986] ; CPL 100.40[1][b].) The information must also set-forth "non-hearsay, factual allegations which, if true, establish every element of the offense charged and the defendant's commission thereof" ( CPL 100.40[1][c] ; People v. Inserra , 4 NY3d 30 [2004] ). 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, 361–62 [2000].) However, conclusory statements that merely track the language of the statute are insufficient. ( People v. Dreyden , 15 NY3d 100 [2010].)
The instant accusatory instrument charges that on March 30, 2017, at approximately 6:25 a.m., inside of 1796 Vyse Avenue, Apartment S4, County of the Bronx, while executing a search warrant issued by Honorable Judge Julio Rodriguez III,
[Detective William Rojas] observed the defendants acting in concer (sic ) with separately apprehended SAMMIE SPELLS (B1761681) and RENE WELLINGTON (B17616815) in that upon entering the location, he observed separately apprehended COLVIN and defendant SPELLS in the bedroom and defendant WELLINGTON to be asleep under the kitchen table.
Deponent further states that he observed the defendants to have in their custody and control, on the nightstand in the bedroom, one (1) glassine containing a beige, powdery substance, white rock-like residue.
Deponent states, that based upon deponent's training and experience, which includes training the recognition of controlled substances, and their packaging, the aforementioned substances are alleged and believed to be heroin and crack cocaine residue.
Deponent further states that he observed defendants to have in their custody and control in the kitchen, white rock-like residue.
Deponent states, that based upon deponent's training and experience, which includes training the recognition of controlled substances, and their packaging, the aforementioned substances are alleged and believed to be heroin and crack cocaine residue.
A person is guilty of criminal possession of a controlled substance in the seventh degree when she "knowingly and unlawfully possesses a controlled substance" (PL 220.03). Under PL 10.00(8), to "possess" means to have physical possession of, dominion or control over, tangible property. Here, the defendant is alleged to have constructively possessed alleged heroin and crack cocaine residue recovered from the nightstand in the bedroom and in the kitchen.
The defendant contends that the factual part of the complaint insufficiently alleges that the defendant had constructive possession over the alleged heroin and crack cocaine residue in the apartment.
To support a charge that the defendant had constructive possession of tangible property, the People must show that the defendant exercised dominion or control over the property by demonstrating that she had a sufficient level of control over the area in which the contraband was found or over the person from whom it was seized (see People v. Manini , 79 NY2d 561 [1992] ).
Dominion and control can be established in a variety of ways, including the defendant's proximity to the contraband ( People v. Tirado , 47 AD2d 193 [1st Dept 1975] ; defendant's control over the premises ( People v. Torres , 68 NY2d 677 [1986] ); defendant's authority over another individual with actual possession of contraband ( People v. Rivera , 77 AD2d 538 [1st Dept 1980] ). Dominion and control has also been found where a defendant is the sole occupant of the premises and the contraband is found in plain view ( Matter of Dirhim A. , 178 AD2d 339 [1st Dept 1999] ). Additionally, several individuals may constructively possess an object simultaneously, provided that each individual exercised dominion and control over the object or the area in which the object is located. (see e.g. People v. Torres , 68 NY2d at 678–679 [1986] ; People v. Smith , 215 AD2d 940, 941 [3d Dept 1995] ).
However, mere presence where contraband is found is not sufficient to show dominion and control over that contraband ( People v. Pearson , 75 NY2d 1001 [1990] (mere presence when defendant observed exiting back room of grocery store where contraband in plain view was recovered); People v. Dawkins , 47 AD2d 193 [1st Dept 1975] (People failed to prove that the defendant resides in the apartment, frequented it on a regular basis or otherwise exercised dominion and control over the area where contraband was found); People v. Huertas , 32 AD3d 795 [1st Dept 2006] (mere presence where defendant found in the garage that housed marijuana operation); People v. Brown , 240 AD2d 675 [2d Dept 1995] (evidence found legally insufficient where defendant was girlfriend of the lessee of the apartment and was merely present when contraband was discovered) ).
Here, the allegations are insufficient to establish that the defendant had dominion and control the alleged heroin and crack cocaine residue found in the bedroom and kitchen. As an initial matter, the court finds that the allegation that the controlled substances were in the defendant's "custody and control" is conclusory as it fails to give any support or explanation for this belief ( People v. Glassman–Blanco , 42 Misc 3d 96 [App Term, 2d Dept, 11th & 13 Jud Dists 2013] ). Further, the defendant's only alleged connection to the apartment in which the drugs were recovered was her sleeping under the kitchen table at the time the search warrant was executed. Absent allegations that the defendant owned, rented, frequented, had control over or possessory interest in the premises, it cannot reasonably be inferred that the defendant had dominion and control over the apartment. (see People v. Thompson , 214 AD2d 763 [3d Dept 1995] ( defendant was asleep on floor, but nothing indicated that he owned, leased or resided in apartment or that he had exercised any dominion and control over drugs, weapons or apartment.) Additionally, there are no allegations connecting the defendant to any illicit activities in that apartment (see People v. Jefferson , 43AD2d 112 (1st Dept 1983); People v. Morales , 556 AD2d 128 [1st Dept 1990] ). Therefore, the allegations fail to establish that the defendant had constructive possession over the controlled substances via her dominion and control over the apartment itself.
While one count of the complaint does allege that the defendant and heroin and crack cocaine residue were found in the same room, the kitchen, that fact, without more, is not circumstantial proof that the defendant constructively possessed the drugs ( People v. Pearson , 75 NY2d at 1002 ). The complaint does not specify the defendant's proximity to the alleged contraband. Nor is it alleged that the defendant admitted to using drugs in the apartment, or that the defendant was found in a private area of the apartment ( People v. Hyde , 302 AD2d 101, 106 [1st Dept 2003] ). Nor is it alleged that the defendant was the sole occupant, or that the contraband in the kitchen was found exposed in plain view (id .; compare People v. Valdez , 145 AD2d 374, 375 [1st Dept 1988] (evidence that defendant was observed hunched over the radiator upon which the contraband was openly displayed, and no other person was present in the building lobby found legally sufficient). Without such allegations, it cannot reasonably be inferred that the heroin and crack cocaine residue were within the defendant's immediate control and reach, and available for unlawful use if she so desired. (Id. ; compare People v. Johnson , 23 Misc.3d1130(A)[Crim Ct, NY County 2009] (reasonable inference that two plates with razors, each containing cocaine residue, were in plain view and readily accessible to the defendants).)
While the People need not, for pleading purposes, disprove every conceivable defense (see People v. Deegan , 69 NY2d 976, 979 [1987] ; People v. Barona , 19 Misc 3d 1122[A] [Crim Ct, NY County 2008] ), conduct which is equally compatible with guilt or innocence will not supply reasonable cause ( People v. Carrasquillo , 54 NY2d 248, 254 [1981] ).
Further, the accusatory instrument fails to sufficiently allege that the defendant acted in concert with the co-defendants by soliciting, requesting, commanding, importuning, or intentionally aiding the co-defendants to criminally possess controlled substances (PL 20.00; see People v. Rivera , 176 AD2d 498 (1st Dept 1991).
Since the allegations are insufficient to demonstrate with reasonable cause that the defendant exercised the requisite dominion and control over the heroin and crack cocaine residue found in the kitchen and bedroom necessary to establish her constructive possession of them, the defendant's motion to dismiss for facial insufficiency is granted. The defendant's remaining motions are denied as moot.
The court directs that sealing be stayed for thirty (30) days from the date of this decision. The People have leave to file a timely, facially sufficient information consistent with CPL 30.30 and 170.30.
This constitutes the decision and order of the court.