Defendant received a Desk Appearance Ticket on August 22, 2013, and appeared as required on October 1, 2013. On that date, he was arraigned on an Information charging him with one count [*2]of Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of Penal Law § 220.03, and was released on his own recognizance.

The Court also set a motion schedule, and adjourned the case to November 19, 2013, for response and decision. Defendant filed the instant motion on October 28, 2013, but the People did not respond on November 19. The Court gave the People a second opportunity to respond, setting a new response date of December 3. The People again failed to respond.

According to the Information, either defendant or the individual with whom he was placed in a police holding cell dropped a bag of cocaine to the floor. However, in the absence of any fact that might tend to suggest that it was the defendant who did so, or that the two individuals were acting in concert, the Information is facially insufficient.

Because this motion requires a detailed examination of the content of the Information, the complete text of its factual recitation, as sworn out by Officer Merandy, is set out below.

To be facially sufficient, an Information 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 Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115 (1986). Rather, it 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 contained in the Information 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). [*3]See also Casey, 95 NY2d at 360. Under these standards, the Information here is facially insufficient.C. Legal Analysis

The only reasonable inference that can be drawn from the facts in the Information is that either defendant or the separately charged individual with whom he shared a holding cell dropped a bag of cocaine to the floor. However, absent any fact that would tend to show that it was the defendant, and not the other person, who did so, or any fact showing that there was a relationship between the two cellmates, the Information is facially insufficient.

Preliminarily, this case requires a closer look at the "reasonable cause" standard, since the Information can only be sufficient if it provides reasonable cause to believe that the defendant committed the offense charged. CPL § 70.10(2). The terms "reasonable cause" and "probable cause" are generally considered to be synonymous. People v. Omowale, 83 AD3d 614, 618 (1st Dept 2011); People v. Lloyd, 31 Misc 3d 1223(A) at *2 (Just Ct Town of Webster (2011)). For either to exist, the evidence must be strong enough to support a finding that it was more likely than not that the defendant committed a crime. People v. Mercado, 68 NY2d 874, 877 (1986) (probable cause existed where it was "more probable than not" that criminal activity was taking place); People v. Carrasquillo, 54 NY2d 248, 254 (1981) (probable cause for an arrest requires facts establishing that it is "at least more probable than not that a crime has taken place and that the one arrested is its perpetrator"); People v. Carpenter, 213 AD2d 747, (3d Dept 1995) (reversing denial of suppression motion where search warrant affidavit did not establish that it was "more probable than not" that defendant was selling drugs out of the target location); People v. Skrine, 125 AD2d 507 (2d Dept 1986) (where defendant was one of several people matching description in radio run, evidence failed to establish that it was "more likely than not" he was the person who committed the crime); People v. Miranda, 106 AD2d 407, 409 (2d Dept 1984).

Carrasquillo instructs that "conduct equally compatible with guilt or innocence will not suffice" to establish probable cause. 54 NY2d at 254. Accordingly, when the evidence is in equipoise - that is, so evenly balanced such that there can be no finding that the necessary inference of criminality is more likely true than not - there can be no finding of reasonable cause or probable cause. See, e.g., United States v. Martinez, 643 F3d 1292, 1299 (10th Cir. 2011) (affirming district court's conclusion that, where evidence was in equipoise as to whether exigent circumstances existed, warrantless search was unlawful).

Here, the Court finds that the evidence as to who tossed the drugs that the officer found in the holding cell is in equipoise - perfectly balanced. There is an exact fifty percent chance that either defendant or the other person did it, and the Information contains no fact that might tip the scale, even slightly, in favor of the conclusion that it was more likely than not the defendant. Accordingly, there can be no finding of "reasonable cause" that defendant possessed the drugs. This conclusion renders the Information facially insufficient on both actual possession and constructive possession theories. See Penal Law 10.00(8) (" Possess' means to have physical possession or otherwise to exercise dominion or control over tangible property.") Since there is no factual basis for a conclusion that it is more likely than not that the defendant ever had physical possession of the drugs or that he exercised dominion or control over them, the Information is facially insufficient.

As to constructive possession, however, the Court rejects defendant's argument that the Information should be dismissed because it does not establish that defendant had "dominion and control" over the holding cell itself. It is entirely possible for a person to be found to have dominion or control over contraband when he does not have dominion or control over the particular place where it was discovered. See, e.g., People v. Manini, 79 NY2d 561, 574-75 (1992). Thus, the Court's holding is based only on the absence of facts necessary to support a finding that defendant exercised dominion or control over the drugs themselves, and not on the fact the drugs were discovered in a place over which the defendant lacked dominion or control.

Finally, the Court concludes that the Information is facially insufficient on an acting-in-concert theory. Penal Law § 20.00 provides: "When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct." And there are surely cases where the facts might support a finding of probable cause that more than one person shared criminal responsibility for the possession of the same contraband. For example, in Maryland v. Pringle, 540 US 366, 371-72 (2003), the Court held that there was probable cause to arrest all of the occupants of an automobile from which drugs and money were recovered.

But the probable cause finding in Pringle was based on the existence of facts - and the inferences to be drawn from them - that are not present here. There is a reasonable inference that persons traveling in a car together are "engaged in a common enterprise." Id. at 375. There is no basis for an equivalent "common enterprise" finding on the facts described in the Information here. The only reasonable inference that the Court can draw from the Information is that defendant and his cellmate were random strangers who just happened to be placed in the same cell by the same officer at the same time, and that one of them attempted to dispose of drugs that had been overlooked in the search incident to his arrest. There is no fact pled in the Information that would support the inference that these two persons even knew each other prior to their placement in the cell, let alone one that would support an inference that they were then, or had even recently been, engaged in a common enterprise that might support a reasonable inference that they bore joint or common responsibility for the drugs.

Accordingly, the Information is facially insufficient on an acting-in-concert theory, as well.

Because the facts alleged in the Information render it equally likely that either defendant or his cellmate tossed the drugs, and because there is no basis for a finding that those two individuals were engaged in a common enterprise, the Information is facially insufficient.

For the foregoing reasons, the Court grants defendant's motion to dismiss.

This constitutes the Decision and Order of the court.

Judge of the Criminal Court