The defendant herein was charged with Criminal Possession of Marihuana in the Fifth Degree, pursuant to P.L. 221.10(2).^[FN1] It was alleged that on June 21, 2005 the Webster Police executed a search warrant at the defendant's residence located at 715 Ridge Road in the Town of Webster. Defendant shared said residence with her son, who had been previously arrested on charges of Criminal Possession of a Weapon, 3rd Degree, P.L.265.02(1), Aggravated Unlicensed Operation, 2nd Degree, VTL 511(2)(a), Unlicensed Operator, VTL 509(1), Criminal Possession of a Controlled Substance 3rd Degree, (2 Counts) P.L. 220.16 and Criminal Possession of Marihuana 4th Degree, P.L. 221.15. Upon executing said warrant the police were allowed in said residence by the defendant herself. The police found various items of contraband in and about said residence including the defendant's bedroom. In particular, the police allege that they found marihuana in excess of 25 grams in a laundry basket in her bedroom. As a result, the defendant was charged with Criminal Possession of Marihuana in the Fifth Degree in violation P.L 221.10(2). Subsequently the defendant was arraigned on August 3, 2005. The matter was eventually set down for argument of motions on November 16, 2005.

The defense contends that the information (sic) is deficient, in that it fails to sufficiently allege that the defendant exercised dominion and control of said the alleged marihuana, by non-h[*2]earsay allegations of the police officer on the face of the information.^[FN2]

Facts of the Case.

The misdemeanor complaint filed in this matter alleges that

"During the execution of the search warrant the defendant was found to be in possession of marihuana, which weighed in excess of 25 grams and was found in the defendant's bedroom. The defendant was found in direct possession of the marijuana (sic)."

Issues Presented.

Is the accusatory instrument herein sufficient on its face pursuant to C.P.L. 100.40.

Legal Analysis.

Penal Law Section 10.00(8) defines the term "possess" as follows:

"'Possess' means to have physical possession or otherwise to exercise dominion or control over tangible property."

Thus to possess an item one can have the item in question on his person or be able to obtain access to that item to himself or to provide access to that item to any other person. The court in People v. Dawkins, (1988, 2nd Department) 136 AD2d 726, 524 N.Y.S.2d 64 held in reference to the defendant therein, that "...mere presence in the apartment where the marihuana was found was not sufficient, in and of itself, to establish that she exercised the necessary dominion or control to warrant a finding of constructive possession of the marihuana." However, in the instant case the defendant not only resided in the apartment in question, but in addition the marihuana found by the police was in the defendant's very own bedroom. In People v. Elhadi (3 Dept. 2003) 304 AD2d 982,984, 759 N.Y.S.2d 784 the Appellate Division stated that

"The evidence likewise established defendant's dominion and control over the bedroom where the cocaine was in plain view and, thus, his constructive possession of it (see Penal Law § [*3]10.00 [8]; People v Manini, 79 NY2d 561, 573-574 [1992]), including evidence from which 'a reasonable jury could conclude that only trusted members of the [drug] operation would be permitted to enter' (People v Bundy, 90 NY2d 918, 920 [1997]). The fact that defendant did not own or lease the apartment or that others also stayed in the bedroom where the drugs were found does not preclude a finding of constructive possession since possession may be joint (see People v Tirado, 38 NY2d 955, 956 [1976]; People v Hyde, 302 AD2d 101, 104-105 [2003])."

The defense in its motion raises the issue of sufficiency of the accusatory instrument. The standard for sufficiency is established by C.P.L. 100.15 and C.P.L. 140.40. The defendant contends that the accusatory instrument does not comply with C.P.L. 100.15(3), because not "... every element of the offense charged and the defendant's commission thereof..." was "... not supported by non-hearsay allegations of such information and/or any supporting depositions." However, a review of P.L. 100.15(2) indicates that the elements of the crime of Criminal Possession of Marihuana in the Fifth Degree, in violation P.L 221.10(2), are a (1) knowing, (2) unlawful, (3) possession of the restricted substance, i.e. marijuana, and (4) that has an aggregate weight of more that 25 grams. Certainly, the complaint herein sets out each of these elements.

An analysis of C.P.L. 100.40(4) indicates compliance with subsection (a), which requires that the complaint be in accordance with C.P.L.100.15. Subsection (b) of C.P.L. 100.40(4) sets out a standard of "reasonable cause to believe that the defendant committed the offense charged" after a review the factual and accusatory part of said information. Reasonable cause is defined in C.P.L. 70.10(2), which states that

"'Reasonable cause to believe that a person has committed and 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."

Obviously, a finding of "reasonable cause" does not establish the defendant's guilt. It is only one element in the analysis required to determine if a misdemeanor complaint is sufficient on its face. Nevertheless, C.P.L. 100.40(4) establishes a reasonable person standard in determining said sufficiency.

The defense maintains in its motion papers that "With respect to the information charging Defendant Castner with Criminal Possession of Marijuana (sic) Fifth Degree filed herein, there are no, non-hearsay, allegations of the police office contained on the face of the information, which would make it sufficient". First of all the accusatory instrument is a misdemeanor complaint, not an information. Therefore, C.P.L. 100.40(4), which deals with "misdemeanor complaints", applies, not C.P.L. 100.40(1), which deals with "informations". As a result, there is no requirement that the elements of the offense be established by non-hearsay allegations as required by C.P.L. 100.40(1). Instead C.P.L. 100.40(4) requires establishment of the elements of the offense by "reasonable cause", as defined by C.P.L. 70.10(2), in order for a complaint to be sufficient on its face.

Conclusion. [*4]

The defendant is charged by a Misdemeanor Complaint as defined by C.P.L. 1.20(7). Said accusatory instrument complies with the requirements of C.P.L. 100.15 and 100.40(4). In addition, a review of the factual part of said complaint provides reasonable cause, as that term is defined by C.P.L. 70.10(2), to believe that the defendant committed the offense charged in the accusatory part of such instrument. Since the accusatory instrument herein is a misdemeanor complaint and not an information, as same is defined in C.P.L. 1.20(4), C.P.L. 100.40(1)( c ) is not relevant to the issue of sufficiency of the instant accusatory instrument, as alleged in the defendant's motion papers. Therefore, the defendant's motion, pursuant to C.P.L. 170.30(1)(a) and 170.35(1)(a), to dismiss the accusatory instrument herein as being insufficient on its face is hereby denied. The case is restored to the court's calender for purposes of disposition on December 7, 2005 at 1:00 P.M. This constitutes the decision and order of this court.

Dated: Webster, New YorkE N T E R ,

November 14, 2005______________________

Hon. Thomas J. DiSalvo

Webster Town Justice