Defendant has moved by way of a Notice of Motion, dated December 5, 2013 for various forms of relief supported by the affirmation of Assistant Public Defender Mikael A. Cohn, Esq. The People have responded by Affirmation in Answer to Defendant's Notice of Motion, dated December 18, 2013, supported by the affirmation of Andrea Long, Esq., Assistant District Attorney. The defendant is charged with criminal possession of marijuana in the fifth degree in violation of Penal Law § 221.10(2), a class B misdemeanor. Having duly deliberated on said motion and the answer to same, the Court hereby finds and determines the motion as follows:

Defendant's motion seeks to dismiss the accusatory instrument as facially insufficient on the grounds that 1) there is no legal presumption of possession for occupants of a vehicle where marijuana is found; 2) someone admitted owning the marijuana that was recovered in the vehicle; and 3) the People have failed to turn over a lab report confirming that the substance is marijuana. In opposition, the People argue that 1) while there is no legal presumption of possession in a car, the defendant can be charged with constructive possession of the marijuana found in the car; 2) the person who "admitted" owning the contraband is unknown to the police, has not turned himself in, cannot be located, and does preclude charging this defendant too; and 3) absence of a lab report is not grounds to dismiss for facial insufficiency nor does it negate the People's trial readiness.

Defendant's motion to dismiss is based upon several grounds, one of which demands further consideration: the absence of a legal presumption of possession that the People can use to connect the defendant to the contraband. In lieu of the legal presumption, the People argue that they rely upon the legal theory of constructive possession connecting defendant to the contraband. [*2]

A misdemeanor complaint is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charged [C.P.L. § 100.15(3)] and provides reasonable cause to believe that the defendant committed the crime charge [C.P.L. § 100.40 (4)(b)] see People v. Dumas, 68 NY2d 729 (1986). "[A]n accusatory instrument must be given a reasonable, not overly technical reading." People v. Konieczny, 2 NY3d 569, 576 (2004). The use of legally sufficient circumstantial evidence is sufficient to establish elements of an offense. People v. Serrano, 5 Misc 3d 509 (Nassau Dist. Ct. 2004); People v. Stephens, 177 Misc 2d 819 (Kings County 1998). To be facially sufficient an accusatory instrument need only establish a prima facie case and it need not establish guilt beyond a reasonable doubt. People v. Henderson, 92 NY2d 677 (1999); People v. Moncayo, NYLJ, April 10, 1997, at 29, Col 4 (App Term, 2d & 11th Jud. Distr.).

A. Legal sufficiency of the complaint:

In order to be facially sufficient for this charge, the People must have alleged facts sufficient to support the following, "A person is guilty of criminal possession of marijuana in the fifth degree when he knowingly and unlawfully possesses: one or more preparations, compounds, mixtures or substances containing marijuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than twenty-five grams." P.L. § 221.10(2). "Possesses" means "to have physical possession or otherwise to exercise dominion or control over tangible property." P.L. § 10.00(8); People v. Sierra, 45 NY2d 56 (1978).

The People concede that P.L. § 220.25(1) only applies to the presence of a controlled substance in an automobile. There is no legal presumption of possession for all occupants of a vehicle in which marijuana is discovered by the police. People v. Gabbidon, Jr., 40 AD3d 776 (2d Dept. 2007); P.L. § 220.25(1). Instead, the People argue that the defendant had "constructive possession" over the marijuana in the car, for the accusatory does not allege that the defendant had physical possession of the marijuana. It reads as follows:

"Did possess one black plastic bag containing the following; three clear knotted plastic bags each containing a green leafy substance, one large Ziploc bag containing two smaller Ziploc bags each containing a green leafy substance and one large Ziploc bag containing eight smaller Ziploc bags and one clear knotted plastic bag each containing a green leafy substance. The defendant did possess the aforementione (sic) black plastic bag in the cener (sic) console of a rented 2012 Jeep. The contents of the aforementioned bags did have an aggregate weight of more then (sic) forty grams, which is well more then 25 grams. All contrary to the above provisions. I have been trained and certified to conduct the Marquis Reagent field test. On the above date I conducted the test according to the manufacturer's instructions and my training. I have previously conducted this test approximately 200 times. According (sic), I have compared prior field test results with subsequent laboratory analysis results and on each occasion the field test results were consistent with the laboratory analysis for the presence of a controlled substance. Further, I have successfully completed training in the handling and identification of controlled substances. Based upon my training and experience, the color, consistency, and packaging of the substance, as well as the positive result of the field test, it is my opinion that the substance is marijuana."If indeed the People are relying upon constructive possession, the People must allege in the complaint that the defendant exercised a sufficient level of control over the area in which the contraband is found. See People v. Manini, 79 NY2d 561, 53-74 (1992). Constructive possession may be shown circumstantially and several people may constructively possess contraband simultaneously, provided [*3]it is established that each exercises dominion and control over the object or area in which the contraband is found. People v. Murdough, 20 Misc 3d 1137(A)(New York County 2008) citing People v. Tirado, 38 NY2d 955 (1976); People v. Smith, 215 AD2d 940, 941 (1995) leave denied 86 NY2d 802 (1995); People v. Elhadi 304 AD2d 982, 984 leave denied 100 NY2d 580 (2003). "Dominion and control may be demonstrated by defendant's proximity to contraband or control over the premises. [see People v. Tirado, 47 AD2d 193 (1st Dept. 1975 affirmed 38 NY2d 955 (1976)] through defendant's sole occupancy of a location where contraband is found in plain view (see Matter of Dirhim A., 178 AD2d 339 (1st Dept. 1991), or defendant being the tenant of record or possession of a key to a premises where contraband is recovered." People v. Murdough, 20 Misc 3d 1137(A)(New York County 2008) citing People v. Torres, 68 NY2d 677 (1986).

Here, while the complaint is sworn to by both police sergeants, there are no evidentiary facts supporting defendant's constructive possession of a criminal possession of marijuana charge. The complaint is utterly void of any factual allegations establishing or tending to establish the defendant's dominion and control over the contraband found in the car. The complaint does not state where in the car this defendant was seated in relation to the contraband or defendant's proximity to the contraband, or any statements made by defendant linking him to the contraband. It does not state if the console was opened or closed, if the contraband was in plain view, if the car was defendant's rental vehicle, if the defendant had keys to the car, or even how many people were in the car. It does state that the officers smelled marijuana when they approached the vehicle - a fact that the People have alleged in their opposition papers - but is missing from the accusatory. As such, they cannot be considered by this Court in deciding the instant motion.

The rule in deciding motions to dismiss for facial insufficiency is that Courts are confined in their analysis to the allegations contained solely in the complaint and any depositions filed in support of it. See, People v. Alejandro, supra at 138; see also People v. Konieczny, 2 NY3d 569, 576 (2004). "[T]he court may not consider any extraneous allegations contained in a motion to dismiss or an answer to a motion to dismiss." People v. Voelker, 172 Misc 2d 564, 569 (Kings County 1997). Accordingly, this Court has confined its analysis to the allegations set forth in the complaint charging the defendant with criminal possession of marijuana in the fifth degree. Toward that end, the only factual allegation tending to connect the defendant is that the "defendant did possess the aforementione(sic) black plastic bag in the cener (sic) console of a rented 2012 Jeep." This Court holds that defendant's mere presence somewhere in the vehicle, without more, is insufficient to charge defendant with constructive possession of marijuana found in the console. The accusatory is lacking sufficient non-hearsay facts of an evidentiary nature that support or tend to support each and every element of the offense of criminal possession of marijuana and the defendant's commission of said offense. C.P.L. §§ 100.15 (3), 100.40 (1)(c); People v. Alejandro, 70 NY2d 133 (1987).

B. The lab report:

While the defendant argues absence of the lab report is fatal to the People's case, the New York Court of Appeals has held that a lab report is no longer necessary to convert a misdemeanor complaint charging a defendant with possession of marijuana or other narcotics such as heroin or cocaine [People v. Kalin, 12 NY3d 225 (2009); see also People v. Hernandez, 124 Misc 2d 376 (1984)] to sustain the facial sufficiency of an information [People v. Paul, 133 Misc 2d 234 (1986)] or to sustain the validity of a superseding information [People v. Williams, 8 Misc 3d 1008(A) [*4](Watertown City Court 2005)]. Likewise, lab reports are no longer necessary for the People's notice of trial readiness to be valid. People v. Fox, 2 Misc 3d 950 (2004).

C. Unknown third party:

A letter from someone claiming the contraband, who was not in the car at the time of the stop, his whereabouts are unknown to the police, and who has not turned himself in does not exonerate this defendant, nor does it provide grounds to dismiss for facial insufficiency. In addition, the letter does not preclude the People from charging more than one defendant with possession of marijuana for all occupants in the car where marijuana was discovered - provided it is supported by a properly drafted accusatory instrument that has facts of an evidentiary character supporting or tending to support the charge and provides reasonable cause to believe that the defendant committed the crime of possession of marijuana in the fifth degree. C.P.L. §§ 100.15(3), 100.40(4)(b); People v. Dumas, supra.

THEREFORE, based upon the foregoing, it is now

ORDERED, that defendant's motion to dismiss is GRANTED with permission for leave to re-file in a timely manner granted to the People. Sealing of the matter shall be stayed until forty-five (45) days from the date of this Order. C.P.L. §§ 210.45, 170.45.

SO ORDERED.Dated:February 6, 2014

Poughkeepsie, New York______________________

FRANK M. MORA

CITY COURT JUDGE