People v. Santos, 2014NY080437.

• Decision Date: 10 February 2015
• Docket Number: No. 2014NY080437.,2014NY080437.
• Citation: 9 N.Y.S.3d 595 (Table)
• Parties: The PEOPLE of the State of New York v. Esperanza SANTOS, Defendant.
• Court: New York Criminal Court

9 N.Y.S.3d 595 (Table)

The PEOPLE of the State of New York

v.Esperanza SANTOS, Defendant.

No. 2014NY080437.

Criminal Court, City of New York.

Feb. 10, 2015.

Cyrus R. Vance, Jr., New York County District Attorney, The Legal Aid Society For the People, for the defendant.

Opinion

STEVEN M. STATSINGER, J.

Defendant, charged with two counts of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03 ), one count of criminal possession of marijuana in the fifth degree (Penal Law § 220.10(1) ), and one count of unlawful possession of marijuana (Penal Law § 221.05 ), moves to dismiss, arguing that the Information is facially insufficient. For the reasons that follow, defendant's motion to dismiss for facial insufficiency is GRANTED in part and DENIED in part.¹

Specifically, the Court GRANTS the motion to dismiss one of the § 220.03 counts, and the count charging § 221.10(1), and DENIES the motion to dismiss the second § 220.03 count and that charging § 221.05.

Defendant also moves to suppress certain physical evidence and post-arrest statements. As to that, the Court GRANTS a Dunaway/Huntley/Mapp hearing.

I. FACTUAL BACKGROUND

A. The Allegations

According to the accusatory instrument, on October 21, 2014, police officers executed a search warrant at an apartment in upper Manhattan. Co-defendant Miguel Torres was asleep in one bedroom, where a detective recovered small packages of cocaine from the closet and from the floor next to the bed where Torres was sleeping.

Defendant was in a separate bedroom, where the detective saw that mail addressed to her and her passport were on the dresser. The detective recovered a burnt marijuana cigarette from the top of the dresser and a dollar bill containing cocaine residue from defendant's purse.

In addition, the detective found another marijuana cigarette, a bag containing marijuana, a bag containing cocaine, and a bag containing MDMA² from a drawer in the kitchen. Four children were also present in the apartment.

B. Legal Proceedings

Defendant was arraigned on October 22, 2014, on a misdemeanor complaint charging her with four counts of endangering the welfare of a child (Penal Law § 260.10(1) ), two counts of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03 ), one count of criminal possession of marijuana in the fifth degree (Penal Law § 220.10 ), and one count of unlawful possession of marijuana (Penal Law § 221.05 ). The court released the defendant on her own recognizance, and adjourned the case for conversion.

On November 10, 2014, in lieu of filing a supporting deposition, the People moved to dismiss the counts charging defendant with endangering the welfare of a child, and to strike the related hearsay from the misdemeanor complaint. This Court granted those applications, and deemed the accusatory instrument an information as to the remaining counts.

Defendant filed the instant motion to dismiss on December 2, 2014, and the People responded on December 17. The motion has been sub judice since then.

II. THE INFORMATION

The Information, sworn out by Detective Michael Dominguez provides, in relevant part that:

I executed a search warrant in apartment 1G inside [530 West 163 Street, New York County]. In one bedroom, I observed defendant Torres sleeping in bed. I took a package of tinfoil containing cocaine from the ground next to the bed where Torres was sleeping and several small ziplock bags from inside the closet in that bedroom.

I observed defendant Santos in a second bedroom, and I observed mail addressed to defendant Santos and a passport with her name and photo on a dresser in the bedroom. I took a burnt marijuana cigarette from the top of the dresser and a dollar bill containing cocaine from inside the defendant's purse.

...

In the kitchen, I took the following from an unlocked drawer: one marijuana cigarette, one bag containing marijuana, one bag containing cocaine, and one bag containing methylenedioxymethamphetamine (“MDMA”).

...

Inside the first bedroom with defendant Torres, I observed [three children].

Inside the second bedroom with defendant Santos, I observed a seventeen year old girl, Jazul Santos.³

III. DISCUSSION

Defendant moves to dismiss, alleging that the information fails to sufficiently allege facts from which the Court can draw a reasonable inference that she constructively possessed the substances attributed to her. The People counter that the information is facially sufficient because it alleges that the drugs were found in a room in which the defendant was present and in “common areas” of the apartment. For the reasons that follow, the Court concludes that the information is facially insufficient as to the drugs and marijuana found in the drawer in the apartment's kitchen. It is, however, sufficient as to the drugs and marijuana recovered from the room in which defendant was present. One count of Penal Law § 220.03 is accordingly dismissed; the second, and that charging § 221.05 is not.

For entirely different reasons, however, the count charging defendant with violating Penal Law § 221.10(1) is also dismissed; defendant did not possess the marijuana in a “public place.”

A. Facial Sufficiency in General

A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518, 16 N.E.3d 1150, 992 N.Y.S.2d 672 2014 ); People v. Alejandro, 70 N.Y.2d 133, 138–39, 517 N.Y.S2d 927, 930–31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof.” People v. Kalin, 12 NY3d 225, 228–29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v. Henderson, 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40(1)(c) ). This is known as “the prima facie case requirement.” Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.

The prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that “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.” People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a “fair and not overly restrictive or technical reading,” id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15 ; People v. Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721–22, 967 N.E.2d 1160, 1166–67 (2012). See also Casey, 95 N.Y.2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.

B. The Information Does not Sufficiently Allege that Defendant Constructively Possessed the Drugs and Marijuana Found in the Kitchen Drawer

Penal Law § 220.03 requires the People to prove that the defendant “knowingly and unlawfully possesses a controlled substance, while § 221.05 likewise requires proof that the defendant “knowingly and unlawfully possesses marijuana.” The bare allegation that bags of drugs and marijuana were found in the kitchen drawer of an apartment where defendant appeared to live insufficiently pleads constructive possession.

Penal Law 10.00(8) provides that “[p]ossess' means to have physical possession or otherwise to exercise dominion or control over tangible property.” This can be established by showing that a defendant had 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. Hardy, 42 Misc.3d 211, 976 N.Y.S.2d 774 (County Ct Clinton County 2011). Thus, for example, in People v. Tirado, 47 A.D.2d 193, 366 N.Y.S.2d 140 (1st Dept 1975), aff'd, 38 N.Y.2d 955, 348 N.E.2d 608, 384 N.Y.S.2d 151 (1976), constructive possession of drugs found in defendant's bathroom was established by evidence that he was a tenant or occupant of the apartment, was in close proximity to the drugs, acted as if he had something to hide, and drug paraphernalia was present in plain view in the kitchen. See also People v. Rodriguez, 110 AD3d 456, 973 N.Y.S.2d 49 (1 st Dept.2013) (defendant had “unfettered control” over area where drugs were found); People v. Davis, 101 AD3d 1778, 957 N.Y.S.2d 803 (4th Dept.2012) (defendant lived in apartment and had keys to the safe in which drugs were found).

On the other hand, a defendant's “mere access to premises where contraband is found does not constitute dominion and control.” People v. Johnson, 23 Misc.3d 1130(A), 889 N.Y.S.2d 883 (Crim Ct N.Y. County 2009). Similarly, mere presence in a place where contraband is found does not give rise to an inference of constructive presence. People v. Pierson, 75 N.Y.2d 1001, 556 N.E .2d 1076, 557 N.Y.S.2d 269 (1990).

The facts here fall somewhere between these two extremes, but are not sufficient to establish dominion and control over the area where the drugs were found. To be sure, the information alleges facts from which it can be inferred that the defendant lived in the apartment, and thus that this is a case involving something more than mere presence or mere access. Defendant was present in a bedroom there, suggesting that she was something more than an invited guest, and items belonging to her were present in that room, as well.

However, the information does not establish that she was actually the lessee of the apartment, nor does it allege any other fact that might establish that she had a sufficient level of control over the kitchen. In addition, the information does not establish that defendant was in...