The defendant, David Bula, is charged with attempted tampering with physical evidence (PL 110/215.40[2]), criminal possession of marijuana in the fifth degree (PL 221.10[1]), and obstruction of governmental administration (PL 195.05). The defendant has moved in an omnibus motion for dismissal for facial insufficiency, discovery and a bill of particulars, a Mapp/Wade/Huntley/Dunaway hearing, and a Sandoval hearing. The defendant's motion is decided as follows.

In order to be facially sufficient, an information must substantially conform to the formal requirements of CPL 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL 100.15[3] and 100.40[1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]).

The requirement of nonhearsay allegations has been described as a "much more [*2]demanding standard" than a showing of reasonable cause alone (People v Alejandro, 70 NY2d at 138-139, quoting 1968 Report of Temp Comm on Rev of Penal Law and Crim Code, Intro Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d 101, [1st Dept 2003]). Thus, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged" (People v Sylla, 7 Misc 3d 8, 10 [App Term, 2d Dept 2005]). 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, 360 [2000]; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]; People v Shea, 68 Misc 2d 271, 272 [1971]; People v Scott, 8 Misc 3d 428 [Crim Ct, NY County 2005]). Ultimately," the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged" (People v Barona, 19 Misc 3d 1122 [A], 1, 2008 NY Slip Op 50814[U] [Crim Ct, NY County 2008]).

The instant complaint charges that on July 15, 2008 at approximately 8:15 p.m., at Roosevelt Drive East and 110th Street in New York County, the deponent police officer observed the defendant holding a burning marihuana cigarette in his hand which he passed to a separately charged individual who then passed it back to the defendant. The officer alleges that he was able to identify the cigarette as marihuana based upon his professional training and prior experience as a police officer. The officer additionally alleges that when uniformed police officers approached the defendant, the defendant threw the burning marijuana cigarette into the river, where it could not be recovered. Lastly, the officer alleges that he recovered a ziplock bag containing marijuana residue from the ground next to the foot of the separately charged individual.

The defendant argues without elaboration that these facts do not set forth probable cause for the police to have stopped and arrested the defendant. Thus, he seeks dismissal of the complaint for facial insufficiency. The People's response to defendant's omnibus motion fails to address the facial insufficiency claim.

Under PL 221.10 (1), "a person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view." Under PL 240, entitled Offenses Against Public Order, a public place is defined as "a place to which the public or a substantial group of persons has access, and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence." The term "public place" is defined "very broadly" under this section [*3](Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 240.00, at 332). "That a member of the public may pass by is . . . the essence of a public place" (see People v McNamara, 78 NY2d 626, 633 [1991]).

Here, the deponent police officer observed the defendant and a separately charged individual passing what appeared to be a burning marihuana cigarette back and forth between them. Because the defendant subsequently threw the cigarette into the river, the cigarette was not recovered. As a result, there is not now, nor will there ever be, a field test or laboratory analysis report to substantiate that the cigarette contained marihuana. Nevertheless, a plastic ziplock bag containing marihuana residue, as confirmed by a field test, was recovered from the ground next to the separately charged individual's foot. The totality of the factual allegations and the reasonable inferences to be drawn from them, establish the defendant's constructive possession of the marihuana residue in the plastic ziplock bag.

Under PL 10.00, to "possess" means to have physical possession of or dominion and control over tangible property. Constructive possession requires more than a defendant's mere presence in a location where contraband is recovered. In order to support an inference that the defendant was in constructive possession of tangible property, the People must show that the defendant has 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, 573 [1992]). Under the particular circumstances of this case, where the defendant and separately charged individual are alleged to have been smoking what was identified by the deponent officer, based upon his training and experience, as a marihuana cigarette, it is reasonable to infer that the marihuana cigarette was connected to the plastic ziplock bag containing marihuana residue which was recovered from the ground near the separately charged individual's foot. Accordingly, it is further reasonable to infer that the defendant, who was alleged to have physically possessed the marihuana cigarette, exercised dominion and control over the plastic ziplock bag which was the likely source of the marihuana in the cigarette. Moreover, the fact that the plastic ziplock bag containing marihuana residue was closest to the separately charged individual does not negate the defendant's constructive possession of it since "possession if joint is no less possession" (People v Tirado, 38 NY2d 955, 956 [1976 ]). The charge of criminal possession of marihuana in the fifth degree is therefore facially sufficient.

Under Penal Law 195.05, "[a] person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act..." To be facially sufficient, the charge of obstructing governmental administration must allege an act of either (1) intimidation; (2) physical force or interference; or (3) an independently unlawful act (see People v Stumpp, 129 Misc 2d 703, 704 [Dist Ct, Suffolk County 1985], affd 132 Misc 2d 3 [App Term, 2d Dept 1986]).

The alleged act of interference with a governmental or official function must be [*4]physical in nature; mere words alone will not support the charge (People v Case, 42 NY2d 98, 99 [1977]). Moreover, where the public servant is a public officer,it must be alleged that a defendant interfered with a specific official function; it is insufficient to allege simply that the police officer was "in uniform and on duty" (see People v Joseph, 156 Misc 2d 192, 196 [Crim Ct, Kings County 1992]). Finally, the official function must be authorized (see People v Lupinacci, 191 AD2d 589 [2d Dept 1993] [where police had no reasonable suspicion that defendant was involved in criminal activity, attempt to detain him was unauthorized; thus evidence that defendant struggled with police to avoid being handcuffed and walked away from arresting officer, ignoring orders to stop, was insufficient to establish his guilt of obstructing governmental administration]; People v Square, 2008 NY Slip Op 51632[U]); People v Rodriguez, 19 Misc 3d 302 [Crim Ct, NY County 2008]; People v Vogel, 116 Misc 2d 332, 333 [App Term, 2d Dept 1982]. Refusal to obey a police officer's order to "step back" from the scene of an accident (see Decker v Campus, 981 F Supp 851 [1997]), striking an officer during a lawful arrest (see Matter of Shannon B., 70 NY2d 458 [1987]), and punching an officer and yelling obscenities during the arrest of another (In re Carlos G., 215 AD2d 165 [1st Dept 1995]), all have been held to constitute obstructing governmental administration.

Nevertheless, "the concept of physical interference has been construed to require neither the use by a defendant of direct physical force against the officer, nor even any direct physical contact between the two' " (People v Vargas, 179 Misc 2d 236, 239 [Crim Ct, NY County 1998][quoting People v Ravizee, 146 Misc 2d 679, 682 [Crim Ct, NY County 1990]). Accordingly, allegations that a defendant hid a burning marihuana cigar behind his back, broke it into pieces, and then threw it away as a police officer approached to arrest him have been found to provide reasonable cause to believe that the defendant committed the offense of obstructing governmental administration (see People v Mercedes, 194 Misc 2d 731 [Crim Ct, NY County 2003]), as do allegations that a defendant put a vial of crack cocaine into her mouth and swallowed it as a police officer attempted to recover it as evidence (see Ravizee, 146 Misc 2d). In the instant case, as uniformed police officers approached the defendant and the separately charged individual, the defendant allegedly threw a burning marihuana cigarette into the river, thus preventing or impeding, by a physical act comparable to that in Ravizee and Mercedes, the officers from engaging in the authorized official function of recovering evidence of a crime which they had probable cause to believe had been committed in their presence. The charge of obstructing governmental administration in the second degree is therefore facially sufficient.

A person is guilty of tampering with physical evidence when, "believing that certain physical evidence is about to be produced or used in an official proceeding or a prospective proceeding, and intending to prevent such production or use, he suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person" (PL 215.40[2]). Viewed in the light most favorable to the People (see People v Gonzalez, 184 Misc 2d 262 [App Term, 1st Dept 2000]), the factual allegations and the reasonable inferences to be drawn from them provide probable cause to believe that the defendant possessed, and discarded [*5]as police approached, a burning marihuana cigarette. The act of discarding a physical object, possession of which is illegal, while being approached by uniformed police officers (see People v Mitchell, 17 Misc 3d 1103A [Crim Ct, Kings County 2007], citing People v Mercedes, 194 Misc 2d 731 [Crim Ct, NY County 2003] and People v Palmer, 176 Misc 2d 813 [Crim Ct, NY County 1998]) tends to demonstrate the defendant's belief that the object discarded would have been used in a prospective proceeding, as well his intent to prevent such production or use. Accordingly, the charge of attempted tampering with physical evidence is facially sufficient.

Defendant's motion to dismiss for facial insufficiency is therefore denied in its entirety.

A Mapp/Dunaway hearing is ordered on defendant's motion to suppress physical evidence.

Defendant's motion to suppress statements and identification evidence is denied as moot. Defendant's motion to preclude statements and identification evidence for which proper notice has not been given is denied with leave to renew if and when the People seek to introduce any such evidence.

Defendant's request for a bill of particulars and his demand for discovery are granted to the extent provided by the People in their Voluntary Disclosure Form.

Defendant's Sandoval application is reserved to the trial court.

This constitutes the decision and order of the Court.

Dated:February 10, 2009

New York, New York

_________________________

Elisa S. Koenderman, JCC