The Defendant is charged, by information, with Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of Penal Law § 220.03 and Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1). The Defendant now moves for an order, pursuant to CPL § 710.30(1)(a), 170.35(1)(a), 100.20 and 100.40 to dismiss the informations as facially insufficient; suppressing any tangible property seized from and any statements made by the Defendant, or in the alternative directing that a "Dunaway/Mapp/Huntley"^[FN1] hearing be held; directing that a pre-trial Sandoval^[FN2] hearing be held; and, granting the Defendant leave to make further motions. The People oppose the motion.

An information will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 NY2d 927, 425 NYS2d 56 (1979), and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which "provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information;" People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987); CPL § 100.40(4)(b) and, if true, establish every element of such offense, People v. Moore, 5 NY3d 725, 800 NYS2d 49 [*2](2005); People v. Thomas, 4 NY3d 143, 791 NYS2d 68 (2005) " Reasonable cause to believe that a person has committed an offense' 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 § 70.20 Additionally, "the burden [is] on the People to make out their prima facie case for the offense charged in the text of the information." People v. Jones, 9 NY3d 259, 848 NYS2d 600 (2007); See also: People v. Casey, 95 NY2d 354, 717 NYS2d 88 (2000); People v. Allen, 92 NY2d 378, 681 NYS2d 216 (1998) Such a showing is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Swamp, 84 NY2d 725, 622 NYS2d 472 (1995); People v. Porter, 75 AD2d 901, 428 NYS2d 63 (2nd Dept. 1980)

Penal Law § 220.03 provides, "A person is guilty of criminal possession of a controlled substance in the seventh degree with he knowingly and unlawfully possesses a controlled substance." The information charging the Defendant with this crime alleges, inter alia, that on November 15, 2008, at about 10:41 p.m., at 1038 Woodcliff Drive, Franklin Square, the Defendant was observed "in possession of three dollar bills (US Currency) containing what is believed to be Cocaine. Said cocaine was in plain view on top of defendant (sic) television in the living room at place of occurrence." A Forensic Evidence Bureau report identifying the substance recovered as cocaine has been annexed to the information.

The Defendant argues that this information is facially insufficient in that it fails to contain non-hearsay allegations which would establish that the Defendant possessed the substance on the dollar bills observed on a television set at the location in question. Specifically the Defendant claims that "[t]here is simply no allegation that the defendant possessed the substance seized nor is there any allegation regarding the defendant's ties to the premises or the property in question to support a theory of constructive possession." (Buxbaum Affirmation 3/16/09, ¶ 14) According to the Defendant, in the absence of any such allegations this information must be dismissed.

In opposition the People allege that the cocaine was recovered in the Defendant's home. The People further allege that the Defendant advised the complainant, Police Officer Michael C. Prihodka, that she "had four or five beers and did a little coke," evidencing her knowledge of the existence and presence of the cocaine. Curiously, neither of these allegations, set forth in counsel's affirmation in opposition, are contained in the information charging the Defendant with a violation of Penal Law § 220.03.

Pursuant to Penal Law § 10(8) "possess" "means to have physical possession or otherwise to exercise dominion or control over tangible property." The information herein does not suggest that the Defendant had physical possession of the substance recovered, but relies on a theory of constructive possession. To be facially sufficient, the information must set forth non-hearsay allegations, which if true, demonstrate "that the defendant exercised dominion or control' over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized (citations omitted)." People v. Manini, 79 NY2d 561, 584 NYS2d 282 (1992); See also: People v. Arnold, 60 AD3d 960, 875 NYS2d 571 (2nd Dept. 2009); People v. Hamilton, 291 AD2d 411, 736 NYS2d 901 (2nd Dept. 2002); People v. Brown, 240 AD2d 675, 659 NYS2d 82 (2nd Dept.1997) The mere presence of an individual in a room where contraband [*3]is located is insufficient proof of the individual's possession of same. See: People v. Pearson, 75 NY2d 1001, 557 NYS2d 269 (1990), where police observation of the defendant exiting a room where contraband observed in plain view was found insufficient; People v. Sanabria, 73 AD2d 696, 423 NYS2d 223 (2nd Dept. 1979), where the defendant's presence during an undercover drug sale in her apartment did not establish her dominion and control over the drugs; and, Matter of Dallas L., 183 AD2d 897, 584 NYS2d 588 (2nd Dept.1992), where the presence of the defendant in a room where a vial of crack cocaine was found on the floor was held insufficient. In the matter sub judice the information charging Criminal Possession of a Controlled Substance in the Seventh Degree suffers from the same deficiency.

The non-hearsay allegations of this information allege nothing other than cocaine being found on three (3) dollar bills located on the top of a television in the living room at the place of occurrence. Officer Prihodka's characterization of this television as the "defendant (sic) television"is conclusory in nature and completely devoid of any "evidentiary facts alleged to support the inference that the defendant owned or occupied the [premises]." People v. Lebron, 22 Misc 3d 217, 866 NYS2d 560 (Crim.Ct. NY Co. 2008) Completely absent are any allegations that the Defendant was an owner or a resident of the subject premises, had mail delivered to the premises, was the lessee of any utility services at the premises, or had any control over or possessory interest in the premises or the cocaine observed in the living room, See: People v. Lebron, supra ., People v. Arnold, supra ., People v. Pearson, supra . In fact, the information does not even allege that the Defendant was observed in the same room as the cocaine.

While the court may not dismiss a defective information "where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend[,]" CPL § 170.35(1); See: People v. Casey, supra .; People v. Penn Central Railroad Co., 95 Misc 2d 748, 417 NYS2d 822 (Crim.Ct. Kings Co.1978); People v. Pacifico, 105 Misc 2d 396, 432 NYS2d 588 (Crim.Ct. Queens Co. 1980), the People have demonstrated neither the ability nor the desire to amend the information herein. Accordingly, that branch of the Defendant's motion seeking an order dismissing the information charging Criminal Possession of a Controlled Substance in the Seventh Degree is granted; and, Count One is hereby dismissed.

Penal Law § 260.10(1) provides, in pertinent part, "A person is guilty of endangering the welfare of a child when: he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old...." The information charging the Defendant with a violation of this section alleges that on November 15, 2008, at about 10:41 p.m., at 1038 Woodcliff Drive, Franklin Square:

your dependent (sic) observed what appeared to be cocaine in plain view on top of a television set in the living room at place of occurrence. There were also approximately four cases of empty beer cans strewn about the house. By this act the defendant Jennifer Noce knowingly acted in a manner likely to be injurious to the physical, mental and moral welfare of a child less than seventeen years old by leaving the aforesaid cocaine in plain view and accessible to said child. Defendant Jennifer Noce did advise that her daughter was six years old. Defendant admitted "I had 4 or 5 beers and did a little Coke."

The Defendant argues that this information is facially insufficient in that it fails to contain [*4]non-hearsay allegations which would establish that the Defendant acted knowingly and that the Defendant's alleged conduct was likely to injury a child under the age of seventeen. The Defendant further argues that the potential injury to be suffered by the child is speculative, at best. Additionally, according to the Defendant, the information fails to alleged the child's date of birth, the child's presence at the subject premises or the Defendant's alleged use of cocaine in the child's presence.

In opposition the People argue that the information need not allege that the Defendant intended to harm the child or that actual harm resulted from the Defendant's alleged conduct. According to the People, the information is sufficient because it sets forth allegations which, if true, would establish that the Defendant acted knowingly in possessing and using cocaine in the presence of her daughter, who was six (6) years old, and that such conduct was likely to injure the child.

The court has not found, nor do either of the parties cite, any appellate authority addressing the issue of whether or not the mere presence and/or use of cocaine in the immediate proximity of a child may constitute endangering the welfare of a child. There are a few competing lower court cases addressing the issue. In People v. Grajales, 179 Misc 2d 793, 686 NYS2d 608 (Crim.Ct. Bronx Co.1999), where numerous bags of marijuana were observed in the bedroom and kitchen of an apartment in which three (3) children were present, the court held that the mere presence of the marijuana in the apartment, in otherwise unspecified locations, was insufficient to sustain a charge of Endangering the Welfare of a Child. In so holding the court found that, without additional facts, "the nexus between the presence of the marihuana in the apartment and potential harm to the children is at best speculative in nature." In People v. Grillo, N.Y.L.J., Feb. 22, 1990, at 27, col. 2 (Crim Ct. Kings Co. 1990), the court held that allegations that a defendant purchased cocaine in the presence of a four (4) year old rendered the information facially insufficient. Similarly, in People v. Hidad, 15 Misc 3d 1117(A), 839 NYS2d 435 (Crim.Ct. NY Co. 2007) the court found "it would be pure conjecture to find that there was a likelihood of violence or other harm injurious to the physical, mental or moral welfare of the child who accompanied the defendant" when she purchased heroin. In contrast, the court in People v. Alvarez, 20 Misc 3d 606, 860 NYS2d 745 (Crim.Ct. NY Co. 2008) held that allegations of the presence of marijuana in a refrigerator, as well as on the person of a co-defendant, in an apartment which had the strong smell of marijuana throughout, where children were present, were facially sufficient to sustain a charge of Endangering the Welfare of a Child. In doing so, the court distinguished the above referenced cases, noting that they "lacked any allegations showing that the drugs had been consumed in the presence of the child who was present."

This court finds the dichotomy between Alvarez, supra ., on the one hand, and Grajales, supra ., Grillo, supra . and Hidad, supra ., on the other, similar to the dichotomy between People v. Hitchcock, 98 NY2d 586, 750 NYS2d 580 (2002) and its companion case, People v. Duenas, 98 NY2d 586, 750 NYS2d 580 (2002). In Hitchcock, supra ., the court affirmed the defendant's conviction for Endangering the Welfare of a Child where the defendant left a loaded firearm out in the open, with a child present, and the child then took that firearm, which accidentally discharged injuring a friend. In contrast, in Duenas, supra ., the court reversed the defendant's conviction for Endangering the Welfare of a Child where the defendant possessed an illegal handgun, but kept same well secreted, although found by the defendant's brother who took the gun, which accidentally discharged, killing a friend. The distinguishing factor between the two (2) cases was that in the former case, where the gun was left out in the open, the evidence supported a finding that the defendant was aware that his conduct would likely be injurious to a child, whereas in the latter case, [*5]where the gun was secreted, the defendant could not know that his conduct would likely be injurious to a child.

In the case of drugs, it is the opinion of this court that, if properly plead, non-hearsay allegations that the drugs in question were left out in the open, in plain view of a present child, or used in the presence of a child, could sufficiently support a charge of Endangering the Welfare of a Child. Penal Law § 260.10 "does not require that the conduct be specifically directed at a child; rather, a defendant must simply be aware that the conduct may likely result in harm to a child, whether directed at the child or not (see, Penal Law § 15.05[2]). See also: People v. Simmons, 92 NY2d 829, 677 NYS2d 58 (1998) The harm to which the statute refers is the "physical, mental or moral welfare of a child." Penal Law § 260.10 This court is of the opinion that whether or not the knowing use of cocaine and/or leaving cocaine on the top of a television set in the presence of a child, within reach of that child, is likely to injure that child's physical, mental or moral welfare is a question of fact to be determined at trial. As a matter of pleading, however, if properly stated, such allegations can support a charge of Endangering the Welfare of a Child.

The above notwithstanding, the information in the matter sub judice must be dismissed as facially insufficient. Conspicuously absent from this information is any allegation as to the place or time when the Defendant allegedly "had 4 or 5 beers and did a little Coke." More importantly, the information lacks any allegation, non-hearsay or otherwise, that the child was present when the Defendant allegedly consumed the cocaine or when the cocaine was placed in plain view on the television set. As was true with the charge of Criminal Possession of a Controlled Substance, the People have failed to demonstrate either the ability or the desire to amend the information.

Accordingly, that branch of the Defendant's motion seeking an order dismissing the information charging Endangering the Welfare of a Child is granted; and, Count Two is hereby dismissed.

Given the dismissal of the informations herein, the balance of the Defendant's motion is denied as moot.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

June 17, 2009

Andrew M. EngelJ.D.C.