Defendant, charged with Criminal Mischief in the Fourth Degree (Penal Law § 145.00(1)) (Count One), Obstructing Governmental Administration in the Second Degree (Penal Law § 195.05) (Count Two), Resisting Arrest (Penal Law § 205.30) (Count Three), Unlawful Possession of Ammunition (AC § 10-131(i)(3)) (Count Four) and Unlawful Possession of Marijuana (Penal Law § 221.05) (Count Five) moves to dismiss Counts One through Four of the Information for facial insufficiency. For the reasons discussed below, the Court GRANTS the motion to dismiss Counts One through Four.^[FN1]

With respect to Count Five, defendant moves for discovery and to suppress certain physical evidence and statements. As to that Count, the motion for discovery is GRANTED and the motion to suppress is GRANTED to the extent of ordering a Dunaway/Mapp/Huntley hearing.

I. FACTUAL BACKGROUND

A. The Allegations

On July 24, 2013, defendant entered a building located at 317 Bowery, in Manhattan. He opened the door forcefully, causing the glass in the door to shatter. When a detective attempted to arrest the defendant for breaking the door, defendant resisted.

After defendant's arrest, a second detective searched a locker believed to be defendant's and found a bag of marijuana, a scale and thirteen rounds of 9mm ammunition. Defendant admitted that he had bought a bag of marijuana to smoke. A police officer determined that defendant did not have a license to possess a 9mm handgun. [*2]

B. Legal Proceedings

On July 24, 2013, defendant was arraigned on a Misdemeanor Complaint charging him with Criminal Mischief in the Fourth Degree, in violation of Penal Law § 145.00(1) (Count One), Obstructing Governmental Administration in the Second Degree, in violation of Penal Law § 195.05 (Count Two), Resisting Arrest, in violation of Penal Law § 205.30 (Count Three), Unlawful Possession of Ammunition, in violation of AC § 10-131(i)(3) (Count Four) and Unlawful Possession of Marijuana, in violation of Penal Law § 221.05 (Count Five).

The Court set bail in the amount of $750 bond or cash, and adjourned the case to July 29, 2013, for corroboration. Defendant posted cash bail and, on September 30, 2013, the People filed the necessary Supporting Depositions to convert the Misdemeanor Complaint into an Information.

Defendant filed the instant motion to dismiss on November 4, 2013, and the People filed their response on November 19, 2013.

II. DISCUSSION

Defendant raises a number of challenges to the facial sufficiency of Counts One through Four of the Information. For the reasons that follow, the Court grants defendant's motion to dismiss those counts.

A. Facial Sufficiency in General.

To be facially sufficient, an accusatory instrument must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. CPL §100.40(1)(a)-(c). See also People v Dumas, 68 NY2d 729 (1986); People v Alejandro, 70 NY2d 133 (1988); People v McDermott, 69 NY2d 889 (1987); People v Case, 42 NY2d 98 (1977). 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 §70.10 (2).

This standard does not require that the instrument allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115 (1986). Rather, the instrument 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 (2000). A court reviewing for facial insufficiency must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747 (2012). See also Casey, 95 NY2d at 360. Under these standards, the Information here is facially insufficient as to all Counts One through Four.

B. The Information

Because this motion challenges the facial sufficiency of the Information, the entirety of the factual recitation of the Misdemeanor Complaint,^[FN2] which was sworn out by Police Officer Nicholas Scotti, is reproduced here:

I am informed by Lieutenant Patrick Ferguson, of the 9th precinct, that he [*3]observed the defendant forcefully open the door of the building [located at 317 Bowery, in Manhattan], causing the glass in the door to shatter.

I am informed by Israel Mercado ... that he is a custodian of the door and that the defendant did not have permission or authority to damage it.

I am informed by Lieutenant Ferguson that he observed Detective Young ... attempt to place the defendant under arrest for the above behavior. I am further informed by Lieutenant Ferguson that he observed the defendant waive his arms out to the side of his body and above his head, making it difficult for Detective Young to place the defendant under arrest.

I am informed by Detective Singleton ... that she took a bag of marijuana, a scale containing marijuana residue, and thirteen rounds of 9mm ammunition from the defendant's locker.

I have inspected the bag and the scale and I believe that they contain marijuana based upon: my professional training as a police officer in the identification of drugs, my prior experience as a police officer making drug arrests, the odor emanating from the substance, an observation of the packaging, which is characteristic of this type of drug and the defendant's statement that the substance is in fact what it is alleged to be in that I heard the defendant state in substance "I bought the bag of weed to smoke."

I conducted a search of the handgun licence repository and determined that the defendant does not have a valid license to possess a 9mm handgun.

Defendant correctly argues that Court One is facially insufficient. The bare allegation that defendant "forcefully" opened a glass door that then shattered is insufficient as to intent.

Count One charges defendant with violating Penal Law § 145.00(1), which provides that a person is guilty of Criminal Mischief in the Fourth Degree when he "[i]ntentionally damages property of another person," without having, or reasonably believing that he has, the right to do so. A person acts "intentionally" when "with respect to a result or to conduct described by a statute defining an offense ... his conscious objective is to cause such result or to engage in such conduct." Penal Law § 15.05(1). Thus, the People here were required to plead facts establishing that defendant's "conscious objective" was to damage the glass door. The facts in the Information here, by themselves, do not sufficiently make out this element.

Ordinarily, the intent to damage property can readily be inferred when a defendant damages property by subjecting it to a form of use or abuse that is not characteristic of the typical use of that sort of property. Thus, for example, in In re Timothy HH., 41 AD3d 913, 914 (3d Dept 2007), the intent to damage a car was established by evidence that the juvenile struck it with a metal pole. Similarly, In re Carlos M., 32 AD3d 686, 687 (1st Dept 2006), found the requisite intent where a juvenile "hurtled" glass candlesticks and vases, which shattered. Finally, in In re Jordan R.B., 5 [*4]AD3d 1091, 1092 (4th Dept 2004), the juvenile punched a window twice, shattering it.

But this case is different. Doors are meant to be opened; sometimes they are opened forcefully and break, and sometimes they are opened gently and do not. Given this, it takes something more than the allegation of the mere opening of a door, even with sufficient force to damage it, to establish that the defendant acted with the specific intent - the conscious objective - of damaging it. In a case like this, where the act itself does not establish intent, the intent would have to be established by surrounding circumstances. For example, in Jordan R.B., the evidence included allegations that defendant was angry and used "vulgar language" when he broke the window, facts that contributed to the case that he acted intentionally. Id. But here, the Information does not suggest any surrounding circumstance that would show that the defendant's conscious objective in opening the door forcefully was to damage it. Tthe Information is accordingly facially insufficient.

This case has much in common with People v. Dipoumbi, 23 Misc 3d 1127(A) (Crim Ct NY County 2009), where the court dismissed a complaint charging the defendant with Assault in the Third Degree (Penal Law § 120.00(1)), finding that the complaint did not sufficiently allege intent. The factual basis for the assault charge was that the defendant, a taxi driver, was seated behind the steering wheel, "open[ed] the driver side door," and struck a police officer "about the arm with the said door of said taxicab." Id. at *1. The court found that the mere act of opening the door, without more, could not support an inference that defendant had the intent to cause physical injury to the person he hit. Id.

Here, likewise, the Information is insufficient as to intent, and for largely the same reasons. Accordingly, the motion to dismiss Count One is granted.

D. Counts Two and Three Are Dismissed

Counts Two and Three allege that the defendant committed the offenses of Obstructing Governmental Administration in the Second Degree and Resisting Arrest when he resisted police officers' efforts to arrest him for the above-described act. Both of these charges turn on the legality of the arrest itself; an "authorized," or lawful, arrest - one based on reasonable cause - is a predicate for both charges. People v. Sibblies, 98 AD3d 458, 459 (1st Dept 2012); People v. Jensen, 86 NY2d 248, 253 (1996). In light of the Court's conclusion that the Information does not establish reasonable cause to charge defendant with Criminal Mischief in the Fourth Degree, it follows that his arrest for that offense was not "authorized." Counts Two and Three are accordingly dismissed.

E. Count Four Is Dismissed

Defendant is charged with possessing ammunition that was found in what the Misdemeanor Complaint alleges was "defendant's locker." But because the Complaint does not contain facts of an "evidentiary character, "CPL § 100.15(3), establishing a connection between defendant and the locker containing the ammunition, it is facially insufficient.

Where a defendant is charged with constructively possessing contraband, the People are required to establish that "the defendant exercised dominion and 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." People v. Manini, 79 NY2d 561, 573 (1992). See also Penal Law § 10.00(8) (" Possess' means to have physical possession or otherwise to exercise dominion or control over tangible property.").

For this element as for any other, the accusatory instrument must contain "facts of an evidentiary character" that support it. CPL § 100.15(3). The Court of Appeals has repeatedly held [*5]that "conclusory allegations" are not "facts of an evidentiary character." Thus, for example, in People v. Dumas, 68 NY2d 729, 731 (1986), an accusatory instrument was insufficient when it contained "a conclusory statement that the defendant sold marihuana, but [was not] supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually marihuana." Similarly, in People v. Dryden, 15 NY3d 100, 104 (2010), the same was true for a "conclusory statement that an object recovered from a defendant is a gravity knife." At a minimum, the accusatory instrument should "explain briefly, with reference to [the deponent's] training and experience, how he or she formed the belief that the object observed in defendant's possession was a gravity knife." Id.

The requirement that something more than a "conclusory allegation" support an element also applies when the element at issue is the defendant's constructive possession of contraband. In People v. Lebron, 22 Misc 3d 217, 220-21 (Crim Ct NY County 2008), the court found facially insufficient a complaint charging the defendant with possessing drugs and drug paraphernalia recovered from "the defendant's apartment." The court noted that:

Apart from the deponent officer's assertion that the apartment was "the defendant's," however, there are no evidentiary facts alleged to support the inference that the defendant owned or occupied the apartment. For example, there is no allegation that the officer observed the defendant's name on a lease to the apartment, or that he observed mail addressed to the defendant at the apartment; or even that the defendant admitted to the officer that he lived in the apartment. Hence, the officer's statement that the apartment was "the defendant's" is completely conclusory.

The allegation here that the ammunition was recovered from "defendant's locker" is equally conclusory. What is missing - and what Dumas and Dryden clearly require - is some explanation of an "evidentiary character" as to how the officer making this claim came to formulate the belief that the locker was defendant's. This should not be difficult: an officer might aver that the defendant's name was on the locker, that defendant admitted the locker was his or was seen using it, that the officer reviewed a document or record establishing that the defendant had rented the locker, or that defendant had the key or the combination to its lock. See, e.g. People v. David, 234 AD2d 787, 789 (3d Dept 1996) (defendant's dominion and control over apartment established by testimony of witness who knew that defendant lived there, had seen him there frequently, and by fact that defendant's name was on the door). But, absent an allegation of facts such as these, there is an insufficient basis to conclude that defendant had dominion or control over the locker such that he could be in constructive possession of the ammunition it contained. Accordingly, the Information is facially insufficient as to Count Four.

III. CONCLUSION

For the foregoing reasons, defendant's motion dismiss Counts One through Four is granted. As to Count Five, the Court grants defendant's motion for discovery and grants a [*6]Dunaway/Mapp/Huntley hearing.

This constitutes the Decision and Order of the court.

Dated: January 14, 2014_______________________

New York County, New YorkSteven M. Statsinger

Judge of the Criminal Court