The defendant, Daniel Ochoa, is charged with one count of Criminal Possession of Marihuana in the Fifth Degree (PL 221.10 [1]). The defendant has moved in an omnibus motion for dismissal for facial insufficiency; suppression of physical evidence; preclusion of identification or statement evidence for which proper notice has not been given; and preclusion of prior bad acts. 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 demanding standard" than a showing of reasonable cause alone (People v Alejandro, 70 NY2d at 139, quoting 1966 Report of Temp Commn on Revision of Penal Law and [*2]Crim Code, Staff 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, 104 [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 [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, 575 [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, 2005 NY Slip Op 25179 [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] [Crim Ct, NY County 2008]).

The instant complaint alleges that at about 4:00 p.m. on October 7, 2008, at the corner of Academy Street and Sherman Avenue in New York County, Police Officer Ohmeed Davodian observed the defendant holding marihuana in a public place and open to public view. The complaint further alleges that Officer Davodian then recovered two glass jars of marihuana from the ground where he observed the defendant throw them. In contrast, the supporting deposition from Officer Davodian, which was served and filed subsequent to the defendant's arraignment on the complaint, alleges that he recovered the marihuana from "the back seat of defendant's vehicle." A field test report filed and served with Officer Davodian's supporting deposition certifies that the substance in the glass jars tested positive for marihuana. Defendant argues that the charge of criminal possession of marihuana in the fifth degree is facially insufficient because the supporting deposition contradicts the complaint as to where the marihuana was recovered and because the back seat of a vehicle is not a public place which is open to public view. The People counter that the factual allegations establish that the defendant was observed holding marihuana in a public place and open to public view, and that there is no requirement that the marihuana be open to public view at the time it is recovered. Moreover, the People contend that case law supports a finding that the interior of a motor vehicle parked on a public street is indeed a public place.

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 240.00 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 (Donnino, Practice Commentaries, [*3]McKinney's Cons Laws of NY, Book 39, Penal Law § 240.00, at 332); People v Butler, 195 Misc 2d 228, 230 [Crim Ct, NY County].

Nevertheless, in order to sustain a charge of Criminal Possession of Marihuana in the Fifth Degree under Penal Law § 221.10 [1], the marihuana must not only be possessed in a public place, but it also must be either burning or open to public view. Here, the complaint alleges that Officer Davodian observed the defendant holding marihuana at a specified public street corner and that Officer Davodian subsequently recovered two glass jars of marihuana from the ground where he additionally observed the defendant discard them. However, in a separately filed supporting deposition, Officer Davodian alleges that he recovered two glass jars of marihuana from the back seat of defendant's vehicle. Contrary to defendant's assertions, the fact that the supporting deposition contains different factual allegations regarding the recovery of the marihuana does not render the accusatory instrument facially insufficient.

A supporting deposition is "not limited to merely restating the facts as contained in the complaint but may contain additional facts to support the charges in the accusatory instrument" (People v Modica, 187 Misc 2d 635, 636 [Crim Ct, Richmond County 2001]). Even if there are discrepancies, "the statute clearly does not require precise factual symmetry between the accusatory instrument and the supporting deposition as the statute provides that facts in the supporting deposition may be received to supplement or support the charges contained in the accusatory instrument" (id. at 637). Indeed an information may be facially sufficient even though the supporting deposition contains factual allegations which directly contradict those in the complaint (see People v Hobson, 22 Misc 3d, 1111[A] [Crim Ct, NY County 2009] [information deemed facially sufficient where complaint alleged that controlled substance recovered from defendant was heroin but laboratory analysis report revealed that controlled substance was in fact cocaine]).

The complaint, taken together with the supporting deposition and field test, establish that after Officer Davodian observed the defendant holding marihuana at a public street corner, Officer Davodian recovered that marijuana from the back seat of a car where he observed the defendant throw it. Because the information alleges that the defendant was observed holding marihuana at a public street corner, it is facially sufficient irrespective of whether the car seat where the marihuana subsequently was recovered was also a public place which was open to public view.

In any event, the broad definition of "public place" under PL 240.00 encompasses the interior of a car parked on a street to which the public has access, regardless of whether the objective circumstances establish that the interior can, and likely would, be able to be seen by the casual passerby (see People v McNamara, 78 NY2d 626, 633 [1991]; People v Watkins, 2008 NY Slip Op 51378(U) [Crim Ct, NY County 2008]; People v Guzman, 6 Misc 3d 553, 556 [Crim Ct, NY County 2004]). "That a member of the public may pass by is . . . the essence of a public place" (see McNamara, 78 NY2d at 633). Thus, all that is required for the interior of a car to constitute a public place for the purposes of Criminal Possession of Marihuana in the Fifth Degree is mere public access to the street where it is parked (see id.at 633; Watkins, 2008 NY Slip Op 51378(U) at 4).

Moreover, courts have recognized that because transportation is the primary function of an automobile, there is a lesser expectation of privacy in an individual's car [*4]than his home (see Cardwell v Lewis, 417 US 583, 590 [1974]). "A car has little capacity for escaping public scrutiny. It travels public thoroughfares where its occupants and its contents are in plain view" (id.). Indeed, the passenger compartment of a standard automobile is "relatively open to plain view" (California v Carney, 471 US 386, 391 [1985]). Furthermore, "[a]utomobiles operate on public streets; they are serviced in public places; they stop frequently; they are usually parked in public places; their interiors are highly visible; and they are subject to extensive regulation and inspection" (Rakas v Illinois, 439 US 128, 154 n 2 [1978]). In New York, the Court of Appeals has held that "[o]ne has no legitimate expectation of privacy in locations in a car which are observable by passersby" (People v Class, 63 NY2d 491, 494-495 [1984], revd on other grounds 475 US 106 [1986]). Thus, a location within a car which is observable to passersby cannot be considered private and, rather, by its nature is open to public view. The back seat of a car, which is ordinarily visible through a car's windows, is such a location. Moreover, an object which is exposed in a location within a car which is observable to passersby is likewise "open to public view." Hence, the marihuana on the back seat of the car in this case was present in a public place which was open to public view.

Accordingly, the elements of the offense of Criminal Possession of Marihuana in the Fifth Degree have been adequately pled. Any discrepancy between the complaint and supporting deposition regarding the recovery of the marihuana does not affect the sufficiency of the allegations. While these types of inconsistencies or errors may ultimately affect the credibility or reliability of the People's evidence at other stages in the criminal proceeding (see People v Eastmond, 19 Misc 3d 824 [Crim Ct, NY County 2008]), nevertheless, the allegations in the complaint give the defendant notice of the charge against him and ensure against the risk of double jeopardy, and "should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).

Thus, while there may be some alternative explanation for the varying accounts of the recovery of the marihuana, that is an issue for trial. The accusatory instrument is facially sufficient. While the People must still meet their burden of proof beyond a reasonable doubt at trial, their much lesser burden at the pleading stage has been met.

A Mapp/Dunaway hearing is ordered on defendant's motions to suppress physical evidence. Defendant's motion to preclude statements or identification evidence for which the People have not given proper notice is denied at this time with leave to renew should the People seek to introduce any such evidence. The People are directed to disclose the defendant's prior bad acts immediately prior to the commencement of jury selection in compliance with CPL 240.43 and the defendant's application for preclusion of same is reserved to the trial court.

This constitutes the decision and order of the Court.

Dated:March 30, 2009

New York, New York

_________________________

Elisa S. Koenderman, JCC