People v Maass

[*1] People v Maass 2005 NY Slip Op 51872(U) [10 Misc 3d 1051(A)] Decided on July 29, 2005 Criminal Court Of The City Of New York, New York County Kaplan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 29, 2005
Criminal Court of the City of New York, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

Andrew Maass, Defendant.



2004 NY 089178

Deborah Kaplan, J.

The defendant, charged with Criminal Trespass in the Second Degree (Penal Law § 140.15) and Criminally Using Drug Paraphernalia in the Second Degree (Penal Law § 220.50[2]), moves to dismiss the information as facially insufficient. For the reasons set forth below, the defendant's motion is granted to the extent that the count charging Criminally Using Drug Paraphernalia in the Second Degree is dismissed.

The instant information alleges that at about 11:45 a.m. on December 3, 2004, Police Officer Giovanni Ruggiero observed the defendant inside a stairway of an apartment building located at 1905 Second Avenue in New York County, a Housing Authority building. The defendant was beyond posted signs which read "No Trespassing," "Tenants and their Guests Only," and "Anyone who remains unlawfully on these premises will be prosecuted." The information further alleges that the defendant stated, in substance, that he did not live there and was not visiting anyone in the building. According to the information, the defendant told the officer that he was in the building because he was "out of school for lunch." Officer Ruggiero recovered 63 clear ziplock plastic bags from the defendant's left jacket pocket.

Pursuant to CPL § 100.15, a criminal court accusatory instrument must contain an accusatory portion that designates the crimes charged and a factual portion that alleges facts of an evidentiary character supporting the charges. A criminal court information is sufficient on its face if it contains non-hearsay factual allegations which, if true, establish every element of the crimes charged and provide reasonable cause to believe that the defendant committed them. See CPL §§ 100.40 [1]; 100.15[3]; People v Alejandro, 70 NY2d 133 (1987); People v Dumas, 68 NY2d 729 (1986).

I. Count One - Criminal Trespass in the Second Degree

"A person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a dwelling." Penal Law § 140.15. "A person 'enters or remains unlawfully' upon premises when he is not licensed or privileged to do so." Penal Law § 140.00(5). "'Dwelling' means a building which is usually occupied by a person lodging there at night." Penal Law § 140.00(3). Common areas located inside of residential multi-unit apartment buildings are "dwellings" within the meaning of Penal Law § 140.00, as long as they are commonly understood [*2]to be closed to the public. See People v Torres, 162 AD2d 385 (1st Dept 1990) [hallway of brownstone with locked front door and no trespassing signs considered a dwelling]; People v Rodriguez, 159 AD2d 201 (1st Dept 1990) [stairwell in public housing project considered a dwelling where it was separated from lobby by doors, and lobby was separated from street by doors].

In support of his motion, the defendant offers only the following conclusory statement: "There are no facts alleged that assert that the defendant remained unlawfully in the premises and that he disobeyed an order to leave." The defendant fails to offer any legal argument, case law or citation to any relevant provision of the Penal Law Criminal Procedure Law to support his bald claim.

As stated above, the instant information expressly alleges that the defendant was in the stairwell of an apartment building beyond the point where no trespassing signs were posted and that the defendant was not licensed or privileged to be in the building. These allegations are non-hearsay allegations that suffice to establish that the defendant "knowingly enter[ed] or remain[ed] unlawfully in a dwelling" (Penal Law § 140.15), the essential elements of Criminal Trespass in the Second Degree. Contrary to the defendant's contention, the information need not allege that he disobeyed an order to leave the premises in order to establish a prima facie violation of Penal Law § 140.15. Therefore, the information is facially sufficient with respect to that count. Counsel is cautioned against filing motion papers which assert specious arguments in a stream of consciousness format. The defendant would be better served by motion practice which is well-reasoned, founded in the law and supported by the facts of the case.

II. Count Two - Criminally Using Drug Paraphernalia in the Second Degree

"A person is guilty of criminally using drug paraphernalia in the second degree when he knowingly possesses or sells... (2) Gelatin capsules, glassine envelopes, vials, capsules or any other material suitable for the packaging of individual quantities of narcotic drugs or stimulants under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use, the same for the purpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug or stimulant..." Penal Law § 220.50[2] [emphasis added].

Because the items proscribed by Penal Law § 220.50 may have innocuous uses, proof of mere possession is insufficient. In order to avoid convictions based on innocent possession, the statute requires that a defendant charged with this crime possess two culpable mental states. The first is that the defendant must knowingly possess the proscribed articles. The second is that the defendant must evince knowledge that some person intends to use the articles to unlawfully manufacture, package or dispense a narcotic or stimulant. Both of the two culpable mental states, or mens rea elements, must be sufficiently alleged in the accusatory instrument. See People v Rodriquez, 159 Misc 2d 670 (Crim Ct, NY County 1990).

Here, the accusatory instrument establishes the first mens rea element by alleging that Officer Ruggiero recovered the 63 ziplock bags from the defendant's jacket pocket. This allegation and, in particular, the large number of bags recovered and the fact that they were recovered from the defendant's person, permits a reasonable inference that the defendant knew he possessed the bags. As the Court of Appeals noted in People v Reisman, "possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands, on his person, in his vehicle, or on his premises." 29 NY2d 278, 285-286 (1971). The Court has further explained that "[i]nferences of knowledge are rooted in probabilities based on [*3]experience and proof." People v Sanchez, 86 NY2d 27, 33 (1995) citing People v Reisman, supra. Here, logic dictates that the defendant knew he possessed the bags.

The second mens rea element, however, has not been sufficiently alleged in the information. In determining whether a defendant evinces knowledge that a person intends to use the articles possessed to unlawfully manufacture, package or dispense a narcotic or stimulant, courts have looked to the legislative history of Penal Law § 220.50. The State Commission of Investigation recommended enactment of that statute as a means of prosecuting individuals engaged in drug trafficking in cases where drug paraphernalia is recovered without additional evidence of possession or sale of a controlled substance. In a letter to the Governor, the Office of the District Attorney of New York County wrote that "[the statute] could be extremely helpful in prosecuting 'factory' cases and in cases where a search warrant is obtained but the drugs are not present [when] the paraphernalia used is found." Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 220.50, at 164.

Referencing the legislative history of the statute, the court in People v Rodriguez, 159 Misc 2d 670 (Crim Ct, NY County 2001), dismissed an information which alleged that the defendant possessed a set of scales, a log book, a strainer, and a calculator, in violation of Penal Law § 220.50[3]. The court held that mere possession of such items, without additional circumstances or conduct that tends to show intent to manufacture, package, or dispense narcotics, fails to meet the second mens rea requirement. In People v Albadini, 187 Misc 2d 910 (Crim Ct, NY County 2001), the accusatory instrument alleged that the defendant was observed selling a crack pipe for one dollar, and that 71 empty crack pipes were found behind the counter at the deli where the defendant was working. The court dismissed the information as facially insufficient, concluding that crack pipes fall outside the scope of Penal Law § 220.50. Similarly, the information in People v Shelton, 136 Misc 2d 644 (Crim Ct, Bronx County 1987), alleged that the defendant possessed 28 glass vials with cocaine residue, and two smoking devices with cocaine residue. In dismissing the information, the court held that because the legislative history of Penal Law § 220.50 indicated that it was intended to address the issue of police raids on drug factories where narcotics are manufactured, the defendant's possession of the vials and smoking devices fell outside the scope of the statute.

The above-cited cases are readily distinguished from those of Matter of Dirham A.,178 AD2d 339 (1st Dept 1991), where the accusatory instrument alleged that the defendant worked in a smoke shop in which a large quantity of drug paraphernalia was found, including glass vials, glassine envelopes and a gram scale. The court held that the array and quantity of items found in the store warranted the inference that the defendant knew the items would be used to package and dispense narcotics. The same reasoning supported denial of the defendant's motion to dismiss in People v Kamersi, NYLJ, 6/26/92, pg. 23, col. 1 (Crim Ct, NY County 1992). In that case, the information alleged that the defendant worked in a store where approximately 225,000 glassine envelopes, 10,000 glass vials, 1,000 crack pipes, and 30,000 to 40,000 plastic envelopes were found behind the counter. Also found behind the counter were bottles and packages of mannitol, mannite, quinine powder, lactose, nitrous oxide, procaine, and inositol, all of which have legitimate uses, and which are also commonly used in the preparation of controlled substances.

Further guidance on the issue at bar is provided by cases where the court analyzes the significance of suspected drug paraphernalia in establishing probable cause. For example, in People v McRay, 51 NY2d 594 (1980), the Court of Appeals held that, while a glassine envelope is a tell tale sign of narcotics activity, the mere passing a glassine envelope from one person to [*4]another does not establish probable cause. Rather, additional relevant circumstances or behavior are required to elevate mere suspicion into probable cause. Such circumstances may include an exchange of currency for the glassine envelope, furtive or evasive behavior or possession of such an envelope in an drug-prone area. See also People v Way, 147 Misc 2d 821 (Sup Ct, NY County 1990), [probable cause established where officer directing traffic at Lincoln Tunnel observed bag of vials in back seat of car driven by defendant who refused to make eye contact or obey office's directions and told officer that eh just came from 42nd Street].

The common thread running through these cases is that courts are uniformly hesitant to criminalize possession of an article that is not contraband, per se, without a clear showing, beyond mere possession of the article itself, that the possessor knew the article would be used unlawfully by himself or a third-party. This showing, which is the second mens rea element of Penal Law § 225.50, is necessary to prevent mere possession of an item covered by the statute from becoming a criminal act. Because the intent of Penal Law § 225.50 is to criminalize possession of innocuous items only in cases where there is demonstrated knowledge on the part of the possessor that the article will be used unlawfully, great care must be taken to ensure that the possessor does in fact have the required mens rea with respect to unlawful use. To hold that mere possession of the article, in and of itself, inculpates the possessor, would render the second mens rea requirement meaningless, contrary to the clear intent of the Legislature. Thus, courts have uniformly required the presence of surrounding circumstances or conduct to establish that the possessor of items covered by Penal Law § 225.50 has knowledge that the articles will be used in the course of illegal narcotics activity.

In the instant case, the accusatory information alleges that the defendant was in possession of 63 ziplock bags at the time of his arrest for trespassing. Mere possession of the ziplock bags cannot, however, without more, demonstrate that the defendant had knowledge that the bags would be used to package or dispense narcotics are required to demonstrate that the second mens rea requirement is met. The defendant's possession of ziplock bags does not compare to the quantity and variety of paraphernalia held to be facially sufficient by the courts in Matter of Dirham A., supra and People v Kamersi, supra. In both of those cases, the fact that the defendants were selling of wide variety of paraphernalia in a commercial setting helped justify the inference that they had knowledge that the items would be used in the manufacturing, packaging, or dispensing of narcotics. By contrast, in the instant case, the defendant was in a non-commercial setting and was in possession of only one type of item. Indeed, the instant information does not allege any of the circumstances or conduct, aside from possession of the bags, to demonstrate that the bags would be used unlawfully, nor any other fact to establish the mens rea requirement of the offense charged. The information does not allege that the defendant made any statements indicative of involvement with narcotics, that any money was exchanged for the bags, or that the defendant had recently come from an area with a high incidence of drug trafficking. The mere allegation that the defendant was trespassing at the time he possessed the bags simply does establish the mens rea requirement of Criminally Using Drug Paraphernalia in the Second Degree.

III Conclusion

For the reasons set forth above, the defendant's motion to dismiss the information as facial insufficiency is granted to the extent that the count charging Criminally Using Drug Paraphernalia in the Second Degree is dismissed. The motion is otherwise denied. [*5]

Dated: July 29, 2005 ____________________________________

Judge of the Criminal Court