The defendant is charged with Criminal Possession of Marihuana in the Fifth Degree (P.L. § 221.10(1)).

In an omnibus motion, defendant seeks: (1) dismissal of the charge on grounds of facial insufficiency; (2) suppression of all physical evidence allegedly obtained from defendant; (3) to preclude the prosecution from presenting identification and statement testimony at trial for which they failed to give timely notice; and (4) to preclude the prosecution's use of defendant's prior or subsequent criminal history, or uncharged criminal, vicious, or immoral conduct.

The defendant also seeks discovery, submits a Demand to Produce and a Request for a Bill of Particulars, and seeks reservation of rights to make additional applications based on the People's production and subsequent case development. The People respond to the defendant's motion, provide their Voluntary Disclosure Form, and seek discovery from the defendant.

The motions are decided as follows.

As stated above, the defendant has moved to dismiss the charge of criminal possession of marihuana in the fifth degree on facial insufficiency grounds. The People argue that the information is sufficient as to this charge.

The factual part of the information in this case, which is signed by a police officer of the 33rd Precinct of the New York City Police Department, reports that, opposite of 820 Riverside Drive, in New York County:

Deponent . . . observed the defendant exchange marijuana for US Currency with an unapprehended buyer in a public place and open to public view. Deponent further states that depoenent [sic] recovered thirty (30) plastic bags of marijuana from a black bag located in the window sill of the above location.

Deponent states that he further states that [sic] the above-described substance is in fact what it is alleged to be based upon information and belief, the source of which is as follows: his [*2]professional training as a police officer in the identification of drugs, his prior experience as a police officer in drug arrests, the odor emanating from the substance, observation of the packaging which is characteristic of this type of drug and a field test of substance which confirmed that the substance is in fact what it is alleged to be.

For an information to be sufficient on its face, it must allege "facts of an evidentiary character supporting or tending to support [each] charge[]" (C.P.L. § 100.15(3)), "provide reasonable cause to believe that the defendant committed [each] offense charged" (C.P.L. § 100.40(1)(b)), and contain non-hearsay allegations which "establish, if true, every element of [each] offense charged and defendant's commission thereof" (C.P.L. § 100.40(1)(c); see People v. Alejandro, 70 NY2d 133 [1987]). " 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." (C.P.L. § 70.10(2).) Failure of an accusatory instrument to allege an element of the charged offense is a non-waivable jurisdictional defect. (People v. Kalin, 12 NY3d 225, 229 [2009]; People v. Jones, 9 NY3d 259, 262 [2007].)In reviewing allegations in an information for facial sufficiency, the court should give such allegations "a fair and not overly restrictive or technical reading," so long as they provide the accused with "notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense[.]" (People v. Casey, 95 NY2d 354, 360 [2000].)

Criminal Possession of Marihuana in the Fifth Degree

A person is guilty of Criminal Possession of Marihuana in the Fifth Degree when he or she "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." (P.L.

§ 221.10(1).) In his omnibus motion, the defendant maintains that the accusatory instrument fails to allege, or make allegations that provide for a reasonable cause to believe, that he possessed marijuana open to public view.

To make out a prima facie case as to this crime, four elements must be alleged: (1) knowing and unlawful possession, (2) of marijuana, (3) in a "public place" (see P.L.

§ 240.00(1)), and (4) either burning or open to public view. (See People v. Colon, 17 Misc 3d 128(A) [App. Term, 1st Dept. 2007], lv. denied, 10 NY3d 809 [2008].) The sole count against the defendant is criminal possession of marihuana in the fifth degree. However, the accusatory instrument here identifies two quantities of marijuana: the marijuana that defendant allegedly exchanged for money with an unapprehended buyer and the marijuana allegedly recovered from inside a black bag on a window sill at the above location.

Marijuana Recovered from the Window Sill

The plain reading of the complaint suggests that the marijuana recovered from the black bag does not give rise to the possession charge against the defendant. Moreover, review of the accusatory instrument demonstrates that it fails to allege a prima facie count of P.L. § 221.10(1) with respect to that marijuana. To be sure, two of the elements of this charge are sufficiently alleged. First, the accusatory instrument alleges that the substance recovered from the bag was [*3]marijuana, based on the training and experience of the deponent officer and the positive result of a field test confirming the substance to be marijuana. (See Kalin, 12 NY3d at 229.) In addition, the defendant does not dispute that the alleged events occurred in a "public place," and the court finds that the description of the location and the events alleged reasonably suggest that "opposite of 820 Riverside Drive" means outside, in a place accessible to and observable by the public. (See, e.g., People v. Sherman, 24 Misc 3d 344, 349-50 [Crim. Ct., NY Co. 2009] (discussing P.L. § 240.00(1) and the "public place" element of a criminal possession of marijuana in the fifth degree charge); People v. Santiago, 26 Misc 3d 1205(A), at *2-3 [Crim. Ct., Queens Co. 2009] (same).)

However, there is a serious question as to whether the accusatory instrument sufficiently alleges the element of the defendant's possession of the marijuana recovered from the bag on the window sill. (See P.L. § 10.00(8) (to " [p]ossess' means to have physical possession or otherwise to exercise dominion or control over tangible property"); see also People v. Sierra,45 NY2d 56, 60 [1978]; People v. Manini, 79 NY2d 561, 573 [1992] ("constructive possession" is demonstrated by showing that defendant exercised a level of control over the place where the property is found, or over the person from whom the property is seized, sufficient to give him or her the ability to use or dispose of the property).) The court need not resolve that issue at this juncture because it finds that the instrument entirely fails to allege that this marijuana was open to public view. Indeed, the allegations indicate just the opposite, that the marijuana was inside a black bag. Allegations that marijuana is found in places where it could not be seen by passersby are insufficient to make out the open to public view element. (Santiago, 26 Misc 3d 1205(A) (allegation that marijuana was recovered from center console of car, presumably a closed compartment, failed to demonstrate that the marijuana was open to public view).)

Marijuana Allegedly Exchanged with Another Individual

With respect to the alleged observation sale of marijuana, the accusatory instrument tracks the statutory language of P.L. § 221.10(1) and recites all the elements of criminal possession of marihuana in the fifth degree, to wit, deponent "observed the defendant exchange marijuana for US Currency with an unapprehended buyer in a public place and open to public view." Typically, allegations in an accusatory instrument of an observation of a street drug sale, where a "small object" is observed to be exchanged for money, and marijuana is subsequently recovered from the buyer are sufficient to plead the elements of P.L. § 221.10(1). (See People v. Jones, 22 Misc 3d 129(A) [App. Term, 1st Dept. 2008], lv. denied, 11 NY3d 789 [2008].) However, an essential distinction exists under the factual allegations in the instant matter which supports a different result.

Here, the marijuana allegedly open to public view is not recovered and thus the sole allegation that the exchanged item was marijuana is conclusory. (See Kalin, 12 NY3d at 229 ("factual allegations must establish the basis of the arresting officer's belief that the substance seized was an illegal drug . . . ."); see also People v. Dumas, 68 NY2d 729, 731 [1986] (conclusory statements that a defendant sold marijuana must be supported by evidentiary facts showing the basis for that conclusion); People v. Kenny, 36 AD2d 477, 478-79 [3d Dept. 1971], aff'd, 30 NY2d 154 [1972].) The deponent officer gives no description of the allegedly exchanged marijuana to support his conclusion. Further, it appears that the factual allegations regarding his conclusions based on his training and experience do not apply to the object that was [*4]allegedly exchanged with the other individual as he indicates that a field test was conducted on that marijuana and, as mentioned above, the marijuana allegedly exchanged in public view was not recovered. Simply, the police officer could not draw a conclusion based on the odor of a substance that he could not have smelled and he offers no physical description of the substance that was not recovered on which the court could reason he based his conclusion.

In addition, the allegations fail to establish any connection between the bag on the window sill and the defendant, or between the contents of the bag and the object that defendant allegedly exchanged with the other individual. Such connection would be needed for the court to reasonably infer from it that the exchanged object was marijuana. (See People v. Linen, 3/8/95 NY L.J. 26, (col. 5) [Sup. Ct., NY Co.] (holding that where cocaine that defendant allegedly sold could not be recovered but the vials that the undercover officer bought matched the vials of cocaine that were recovered from defendant a short time later, circumstantial evidence provided grand jury with sufficient basis to infer that substance defendant sold was cocaine); see also People v. Rosa, 220 AD2d 315 [1st Dept. 1995] (while buyers were unapprehended, officer observed seller defendant remove glassines of heroin from a cigarette box hidden under the front of a parked car and such allegation allowed for inference that buyers purchased glassines of heroin from defendant).) Faced with the bare facts in this accusatory instrument, the court is not able to infer that the item allegedly observed being exchanged by the defendant for money was marijuana.

Therefore, this court finds that the accusatory instrument fails to provide reasonable cause to believe that the defendant knowingly and unlawfully possessed marijuana in a public place and open to public view. Accordingly, defendant's motion to dismiss the charge of Criminal Possession of Marihuana in the Fifth Degree is granted.

This constitutes the Decision and Order of the Court.

________________________________

Hon. Rita Mella

Judge of the Criminal Court

Dated: April 9, 2010