Defendant, charged with two counts of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), one count of criminal possession of marijuana in the fifth degree (Penal Law § 220.10(1)), and one count of unlawful possession of marijuana (Penal Law § 221.05), moves to dismiss, arguing that the Information is facially insufficient. For the reasons that follow, defendant's motion to dismiss for facial insufficiency is GRANTED in part and DENIED in part.^[FN1]

Specifically, the Court GRANTS the motion to dismiss one of the § 220.03 counts, and the count charging § 221.10(1), and DENIES the motion to dismiss the second § 220.03 count and that charging § 221.05.

Defendant also moves to suppress certain physical evidence and post-arrest statements. As to that, the Court GRANTS a Dunaway/Huntley/Mapp hearing.

According to the accusatory instrument, on October 21, 2014, police officers executed a search warrant at an apartment in upper Manhattan. Co-defendant Miguel Torres was asleep in one bedroom, where a detective recovered small packages of cocaine from the closet and from the floor next to the bed where Torres was sleeping.

Defendant was in a separate bedroom, where the detective saw that mail addressed to her and her passport were on the dresser. The detective recovered a burnt marijuana cigarette from the [*2]top of the dresser and a dollar bill containing cocaine residue from defendant's purse.

In addition, the detective found another marijuana cigarette, a bag containing marijuana, a bag containing cocaine, and a bag containing MDMA ^[FN2] from a drawer in the kitchen. Four children were also present in the apartment.

On November 10, 2014, in lieu of filing a supporting deposition, the People moved to dismiss the counts charging defendant with endangering the welfare of a child, and to strike the related hearsay from the misdemeanor complaint. This Court granted those applications, and deemed the accusatory instrument an information as to the remaining counts.

Defendant filed the instant motion to dismiss on December 2, 2014, and the People responded on December 17. The motion has been sub judice since then.

The Information, sworn out by Detective Michael Dominguez provides, in relevant part that:

Defendant moves to dismiss, alleging that the information fails to sufficiently allege facts from which the Court can draw a reasonable inference that she constructively possessed the substances attributed to her. The People counter that the information is facially sufficient because it alleges that the drugs were found in a room in which the defendant was present and in "common areas" of the apartment. For the reasons that follow, the Court concludes that the information is facially insufficient as to the drugs and marijuana found in the drawer in the apartment's kitchen. It is, however, sufficient as to the drugs and marijuana recovered from the room in which defendant was present. One count of Penal Law § 220.03 is accordingly dismissed; the second, and that charging § 221.05 is not.

For entirely different reasons, however, the count charging defendant with violating Penal Law § 221.10(1) is also dismissed; defendant did not possess the marijuana in a "public place."

A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518, 16 N.E.3d 1150, 992 N.Y.S.2d 672 2014); People v Alejandro, 70 NY2d 133, 138-39, 517 N.Y.S2d 927, 930-31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." People v. Kalin, 12 NY3d 225, 228-29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v Henderson, 92 NY2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40 (1)(c)). This is known as "the prima facie case requirement." Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.

The prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that "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." People v Casey, 95 NY2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721-22, 967 N.E.2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.

Penal Law § 220.03 requires the People to prove that the defendant "knowingly and unlawfully possesses a controlled substance, while § 221.05 likewise requires proof that the defendant "knowingly and unlawfully possesses marijuana." The bare allegation that bags of drugs and marijuana were found in the kitchen drawer of an apartment where defendant appeared to live insufficiently pleads constructive possession.

Penal Law 10.00(8) provides that " [p]ossess' means to have physical possession or otherwise to exercise dominion or control over tangible property." This can be established by showing that a defendant had a "sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized." People v. Hardy, 42 Misc 3d 211, 976 N.Y.S.2d 774 (County Ct Clinton County 2011). Thus, for example, in People v. Tirado, 47 AD2d 193, 366 N.Y.S.2d 140 (1st Dept 1975), aff'd, 38 NY2d 955, 348 N.E.2d 608, 384 N.Y.S.2d 151 (1976), constructive possession of drugs found in defendant's bathroom was established by evidence that he was a tenant or occupant of the apartment, was in close proximity to the drugs, acted as if he had something to hide, and drug paraphernalia was present in plain view in the kitchen. See also People v. Rodriguez, 110 AD3d 456, 973 N.Y.S.2d 49 (1 st Dept. 2013) (defendant had "unfettered control" over area where drugs were found); People v. Davis, 101 AD3d 1778, 957 N.Y.S.2d 803 (4th Dept. 2012) (defendant lived in apartment and had keys to the safe in which drugs were found).

On the other hand, a defendant's "mere access to premises where contraband is found does not constitute dominion and control." People v. Johnson, 23 Misc 3d 1130(A), 889 N.Y.S.2d 883 (Crim Ct NY County 2009). Similarly, mere presence in a place where contraband is found does not give rise to an inference of constructive presence. People v. Pierson, 75 NY2d 1001, 556 N.E.2d 1076, 557 N.Y.S.2d 269 (1990).

The facts here fall somewhere between these two extremes, but are not sufficient to establish dominion and control over the area where the drugs were found. To be sure, the information alleges facts from which it can be inferred that the defendant lived in the apartment, and thus that this is a case involving something more than mere presence or mere access. Defendant was present in a bedroom there, suggesting that she was something more than an invited guest, and items belonging to her were present in that room, as well.

However, the information does not establish that she was actually the lessee of the apartment, nor does it allege any other fact that might establish that she had a sufficient level of control over the kitchen. In addition, the information does not establish that defendant was in close proximity to the drugs and marijuana; it provides merely that she was in a bedroom and that the contraband was in a drawer in the kitchen. Cf. People v. Castner, 9 Misc 3d 1128(A), 862 N.Y.S.2d 809 (Just Ct 2005) (constructive possession established where defendant resided in apartment and drugs were in her own room). [*4]Finally, the information does not establish that the materials recovered from the kitchen were in plain view; rather, they were in a drawer. Cf. People v. Williams, 8 Misc 3d 1008(A), 801 N.Y.S.2d 780 (Watertown City Court 2005) (drugs in plain view in kitchen of apartment where defendant was tenant).

Accordingly, the Court concludes that the information is facially insufficient as to one count of Penal Law § 220.03, that charging the defendant with knowingly possessing the drugs found in the kitchen drawer.

Defendant complains that the count charging a violation of Penal Law § 220.03 relating to the dollar bill containing cocaine residue should be dismissed because it is based on the "conclusory allegation" that the cocaine was located in "defendant's purse."The Court disagrees.

Here, the allegation that the cocaine was in "defendant's purse" is not the type of completely unsupported "conclusory allegation" that would render the charge facially insufficient. As this Court recently observed, where a

This case is accordingly distinguishable from People v. Lebron, 22 Misc 3d 217, 220—21, 866 N.Y.S.2d 560 (Crim Ct NY County 2008), relied upon by defendant, where the court found facially insufficient a complaint charging the defendant with possessing drugs and drug paraphernalia recovered from "the defendant's apartment," absent "evidentiary facts" that would support the conclusion that the defendant "owned or occupied" the apartment. While there, no fact supported the inference that the apartment was the defendant's, here there are some facts pled that would support the inference that the purse belonged to the defendant.

The motion to dismiss the § 220.03 count relating to the cocaine residue found in defendant's purse is accordingly denied.

The bedroom in which defendant was arrested is not a "public place." Accordingly, the count alleging a violation of Penal Law § 220.10(1) must be dismissed.^[FN4]

Section 220.10(1) makes it a crime to possess marijuana "in a public place, as defined in section 240.00 of" the Penal Law. Section 240.00(1) provides that a "public place" is

It seems fairly obvious, then, that the § 221.10(1) count here cannot stand. Defendant is alleged to have possessed marijuana - or, more accurately, the burnt remains of a marijuana cigarette - within the confines of the bedroom where both she and the marijuana were found. This "room[] or apartment[] designed for actual residence" is not a "public place." People v. Paradiso, 58 Misc 2d 370, 295 N.Y.S.2d 561 (Spec. Sess. Village of Watkins Glen 1968) ("[A] private residence does not fall within the definition of a public place as defined in Section 240.00 of the Penal Law without a showing of special circumstances and such circumstances must be alleged in the Information as part of the necessary facts constituting the violation in question.")

Accordingly, the § 221.10(1) count is dismissed as facially insufficient. However, the count charging Penal Law § 221.05 as to this same marijuana is facially sufficient, as that section does not have a "public place" element.

For the foregoing reasons, defendant's motion to dismiss for facial insufficiency is denied as to one count of Penal Law § 220.03 and one count of Penal Law § 221.05, and granted as to one count of Penal Law § 220.03 and one count of Penal Law § 221.10(1). In addition, the Court grants a Huntley/Dunaway/Mapp hearing.

For the foregoing reasons, defendant's motions to dismiss for facial insufficiency is granted in part and denied in part. The Court also orders a Huntley/Dunaway/Mapp hearing.

Judge of the Criminal Court