MEMORANDUMMOTION TO DISMISS THE ACCUSATORY INSTRUMENT: GRANTED Defendant is charged in the misdemeanor information with Criminal Possession of a Controlled Substance (PL §220.03) under count one and Unlawful Possession of Marijuana (PL §221.05) under count two. The accusatory instrument alleges, in pertinent part, that: “P.O. Steven Douglas…states that on or about April 17, 2018 at approximately 5:00 A.M. inside of 1836 Watson Avenue, Apt 6B, County of the Bronx…that, at the above time and place, he entered the above location, pursuant to a valid search warrant issued by the Honorable Judge J. Hartofilis of Bronx County Criminal Court on April 11, 2018 and valid for ten (10) days thereafter. [P.O. Douglas] further states that upon entering said location, [he] observed defendant D.B., defendant S.Z. and defendant A.S., to be acting in concert, in that they were all present in the second bedroom of apartment 6B, and they all had in their custody and control one (1) plastic vile [sic] containing a dried, green leafy substance with a distinctive odor, and also in that vile [sic], there was (1) small ziplock bag containing a white, powdery substance, which was inside of a purse on top of a dresser. [P.O. Douglas] further states that he observed all three defendant [sic] to be acting in concert, in that they all had in their custody and control, one (1) ziplock bag containing a dried, green, leafy substance which was on top of the dresser. [P.O. Douglas] states that based upon [his] training and experience, which includes training in the recognition of controlled substances, and their packaging, the aforementioned substances are alleged and believed to be marijuana, cocaine and marijuana respectively.”Defendant now moves to dismiss the accusatory instrument for facial insufficiency. Specifically, defendant claims that the accusatory instrument is facially insufficient because it fails to provide sufficient facts of an evidentiary nature which show that he “constructively possessed” the alleged contraband located in the apartment in violation of PL §220.03 and PL §221.05. Defendant further claims that the facts alleged only demonstrate he was “merely present” in the apartment but do not establish that he had “dominion and control” over the alleged contraband.The People, in opposition to defendant’s motion to dismiss, contend the facts alleged in the accusatory instrument establish that defendant had dominion and control over the alleged contraband because it was located in plain view and defendant was in close proximity to it. The People further contend it is evident from the facts alleged that defendant possessed the contraband under the drug factory presumption pursuant to PL §220.25(2).Defendant’s motion is decided as follows:In order for a misdemeanor information to be sufficient on its face it must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that defendant committed the offenses charged (CPL §100.15(3); CPL§100.40(1)[b]; CPL §70.10). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses charged (see CPL §100.40(1)(c); People v. Henderson, 92 NY2d 677). Reasonable cause exists when “evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” [CPL §70.10 (2)]. An information which fails to satisfy these requirements is jurisdictionally defective (see CPL §170.35); People v. Alejandro, 70 NY2d 133; People v. Dumas, 68 NY2d 729).The People bear the burden of satisfying the facial sufficiency requirements by doing so within the “four corners” of the accusatory instrument [see People v. Jones, 9 NY3d 259; People v. Thomas, 4 NY3d 143; People v. Liranzo, 46 Misc3d 140(A)]. In evaluating whether the pleaded allegations establish reasonable cause to believe that a person has committed an offense, the court must do so in the light most favorable to the People and consider all favorable inferences drawn therein [see People v. Williams, 84 NY2d 925; People v. Contes, 60 NY2d 620; People v. Barona, 19 Misc 3d 1122[A]; People v. Mellish, 4 Misc3d 1013(A)].Although, mere conclusory allegations are insufficient (see People v. Dumas, supra) an information sufficient on its face need not articulate every fact necessary to prove the charged allegations (see People v. Mills, 1 NY3d 268; People v. Bello, 92 NY2d 523; People v. Mayo, 36 NY2d 1002). So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see People v. Kasse, 22 NY3d 1142; People v. Kalin, 12 NY3d 225; People v. Casey, 95 NY2d 354). Further, the facts alleged need only establish the existence of a prima facie case, even if it those facts would be insufficient to establish guilt beyond a reasonable doubt (see People v. Jennings, 69 NY2d 103). Moreover, in assessing the facial sufficiency of an information, the court ” ‘is not required to ignore common sense or the significance of the conduct alleged,’” People v. Gonzalez, 184 Misc2d 262, 264 quoting People v. Abdul, 157 Misc2d 511.Penal Law §220.03, Criminal Possession of a Controlled Substance in the Seventh Degree, provides, in pertinent part that:“A person is guilty of criminal possession of a controlled substances in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance…”Penal Law §221.05, Unlawful Possession of Marijuana, provides that:“A person is guilty of unlawful possession of marijuana when he knowingly and unlawfully possesses marijuana.”PL §10.00(8) defines possess as “to have physical possession or otherwise to exercise dominion and control over tangible property.” In the instant matter, inasmuch as the accusatory instrument does not allege that defendant had physical possession of the alleged cocaine and marijuana, the People must demonstrate in the misdemeanor information that defendant had “constructive possession” over the alleged contraband in that he “…exercised dominion and control over the property by a sufficient level of control over the area in which the contraband was found…,” People v. Manini, 79 NY2d 561. Proof of “constructive possession” may be shown circumstantially (see People v. Tirado, 47 AD2d 193; People v. Torres, 68 NY2d 677) and several individuals may constructively possess contraband at the same time provided that each individual exercised dominion and control over the area in which the contraband is found [see People v. Elhadi, 304 AD2d 982; People v. Tirado, supra; People v. Murdough, 20 Misc3d 1137(A)].Circumstances which demonstrate a person exercised dominion and control over contraband include (1) defendant’s close proximity to the drugs (People v. Perez, 259 AD2d 274; People v. Robinson, 225 AD2d 399); (2) allegations that a defendant’s personal effects were found in the area where the contraband is located (People v. Davis, 101 AD3d 1778; People v. Torres, supra); (3) proof that defendant previously provided the address where the contraband is found to governmental agencies as his home address (People v. Vasquez,142 AD2d 698); (4) defendant was named as a tenant on the lease of the residence where the contraband was recovered, frequently visited the location or had keys or some other means of access to the area where the drugs were found (see People v. Davis, supra; People v. Torres, supra; People v. Sandobar, 191 AD2d 375; People v. Armstrong, 160 AD2d 206; People v. Dawkins, 136 AD2d 726).However, it is well-settled that mere presence in an apartment or a room where drugs are found is insufficient to constitute constructive possession [see People v. Maricle, 158 AD3d 984; People v. Scott, 206 AD2d 392; People v. Harvey, 163 AD2d 532; People v. Headley, 143 AD2d 937; People v. Santos, 46 Misc3d 1217(A)].Here, although the accusatory instrument contains the conclusory allegation that defendant had the contraband in his “custody and control,” significantly, it fails to set forth indicia that defendant had dominion and control over such property (see People v. Noce, 24 Misc3d 1202(A); People v. Lebron, 22 Misc3d 217). Although, the People in their response to defendant’s motion claim that “[b]ecause of the illustrated distance stated in the accusatory instrument between defendant and the marijuana and cocaine, the defendant exercised dominion and control over said contraband…,” (Chhikara Affirmation, pg. 62), this assertion is factually incorrect. Nowhere in the accusatory instrument does it describe the distance between defendant and the alleged contraband such that the Court can reasonably infer that defendant was in “close” proximity to the drugs (see People v. Tirado, supra; People v. Hardy, 42 Misc3d 211; People v. Glassman-Blanco, 42 Misc3d 96).Additionally, the People erroneously claim that the accusatory instrument indicates P.O. Douglas observed contraband in an “open purse,” (Chhikara Affirmation,p.82), when, in fact, the misdemeanor information only states that “there was (1) small ziplock bag containing a white powdery substance which was inside of a purse on top of a dresser.” Inasmuch as the accusatory instrument specifically indicates that these drugs were “inside” of a purse, without any reference that the purse was open, there is no factual basis for the Court to reasonably infer that particular contraband was in plain view.Moreover, the accusatory instrument is devoid of any allegations that defendant resided, frequented or had control over the apartment (see People v. Tirado, supra; People v. Scott, supra). Completely absent are any representations that defendant had any possesory interest in the premises or had mail delivered to the address (see People v. Noce, supra; People v. Lebron, supra). Actually, no proof was offered in the misdemeanor information that defendant had any connection to the apartment except his mere presence therein on the date in question [see People v. Maricle, supra; People v. Harvey, supra; People v. Noce, supra; People v. Elwick, 20 Misc3d 1141(A); People v. Key, 18 Misc3d 1140(A)]. Thus, even when viewing the accusatory instrument in the light most favorable to the People “there are no facts or circumstances from which it can be reasonably inferred that the defendant exercised dominion and control either over the premises in which the alleged contraband was found or the alleged contraband itself,” People v. Key, supra; (see also, People v. Scott, supra; People v. Harvey, supra; People v. Headley, supra).Additionally, this Court rejects the People’s contention that the PL §220.25(2) “drug factory” presumption is applicable in the instant case to demonstrate that defendant exercised dominion and control over the alleged contraband. Penal Law §220.25(2 provides, in pertinent part, that:“The presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substances is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found…The Appellate Division, First Department in People v. Rosado, 96 AD3d 547 held that “we do not believe the drug factory presumption was intended to apply to seventh-degree possession, because implicit in the idea of a drug factory is that drugs are being prepared for sale. Therefore it should only apply to crimes requiring intent to sell or crimes involving amounts of drugs greater than what is required for misdemeanor possession.”Here, the drug factory presumption is inapplicable inasmuch as defendant is only charged with misdemeanor drug possession regarding the relatively small quantities of drugs recovered which is consistent with possession for personal use, rather than possession for manufacture and sale. Further, the accusatory instrument does not allege that any drug paraphernalia or packaging equipment was recovered which would tend to show “…an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substances…,” PL §220. 25(2); (see People v. Plower, 176 AD2d 214; People v. Pagan, 133 AD2d 236).Accordingly, defendant’s motion to dismiss the accusatory instrument is granted.This constitutes the decision and order of the Court. The Clerk of the Court is directed to forward a copy of this order and memorandum to the attorney for the defendant and the District Attorney.Dated: July 27, 2018
