People v Gutierrez

[*1] People v Gutierrez 2008 NY Slip Op 52275(U) [21 Misc 3d 1129(A)] Decided on November 13, 2008 Criminal Court Of The City Of New York, New York County Koenderman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2008
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Samuel Gutierrez, Defendant.



2008NY044224



For the People:

ADA Erin LaFarge

New York County District Attorney's Office

For the Defense:

Heather Smith, Esq.

The Legal Aid Society

Elisa S. Koenderman, J.

The defendant, Samuel Gutierrez, is charged with one count of Criminal Possession of Marihuana in the Fifth Degree (Penal Law § 221.10 [1]). The defendant has moved in an omnibus motion for dismissal for facial insufficiency; suppression of physical evidence; suppression of identification evidence; preclusion of identification and statement evidence for which proper notice has not been given; disclosure and preclusion of prior bad acts; and discovery and a bill of particulars. The defendant's motion is decided as follows.

FACIAL SUFFICIENCY

In order to be facially sufficient, an information must substantially conform to the formal requirements of CPL 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL 100.15 [3] and 100.40 [1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]).

The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone (People v Alejandro, 70 NY2d at 138, quoting 1968 Report of Temp Comm on Rev of Penal Law and Crim Code,

Intro Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt (People v Henderson, 92 NY2d 677, 680 [1999]; [*2]People v Hyde, 302 AD2d 101, [1st Dept 2003]). Thus, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged" (People v Sylla, 7 Misc 3d 8, 10 [2d Dept 2005]). Where the factual allegations contained in an information "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, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]; People v Shea, 68 Misc 2d 271, 272 [1971]; People v Scott, 2005 NY Slip Op 25179 [Crim Ct NY County [2005]). Ultimately," the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged" (People v Barona, 19 Misc 3d 1122 [A] [Crim Ct, NY County 2008]).

The instant complaint alleges that at about 9:15 p.m. on June 11, 2008, at the north-west corner of Riverside Drive and West165th Street, the deponent police officer recovered three bags of marihuana ""from the passenger side floor of the vehicle in which defendant was sitting and that recovery area was in close proximity to defendant." Defendant claims that while these factual allegations may establish that the marihuana was possessed in a public place, they are insufficient to support the charge of Criminal Possession of Marihuana in the Fifth Degree under Penal Law § 221.10 (1) because they fail to establish that the marihuana was either burning or open to public view.[FN1] Thus he asserts that the complaint against him must be dismissed for facial insufficiency.

Under Penal Law § 221.10 (1), "a person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view." Under Penal Law § 240, entitled Offenses Against Public Order, a public place is defined as "a place to which the public or a substantial group of persons has access, and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence." The term "public place" is defined "very broadly" under this section (Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 240.00, at 332). This broad definition encompasses the interior of a car parked on a street to which the public has access, regardless of whether the objective [*3]circumstances establish that the interior can, and likely would, be able to be seen by the casual passerby (see People v McNamara, 78 NY2d 626, 633 [1991]; People v Watkins, 2008 NY Slip Op 51378U [Crim Ct, NY County 2008]; People v Guzman, 6 Misc 3d 553, 556 [Crim Ct, NY County 2004]); see also People v Butler, 195 Misc 2d 228, 230 [Crim Ct, NY County 2003]. "That a member of the public may pass by is . . . the essence of a public place" (see McNamara, 78 NY2d at 633). Thus, all that is required for the interior of car to constitute a public place for the purposes of Criminal Possession of Marihuana in the Fifth Degree is mere public access to the street where it is parked (see McNamara, 78 NY2dat 633; Watkins, 2008 NY Slip Op 51378U at 4).

Nevertheless, to sustain a charge of Criminal Possession of Marihuana in the Fifth Degree under Penal Law § 221.10 [1], the marihuana must not only be possessed in a public place, but it must be either burning or open to public view. Here the deponent officer recovered the marihuana from the floor of the passenger's side of the vehicle where the defendant was seated. The complaint does not specify how or under what circumstances the officer observed the marihuana. The lawfulness of the officer's vantage point at the time he observed the marihuana, however, is irrelevant to the question of whether the marihuana was open to public view, and is rather a suppression issue. What is significant is that the marihuana is not alleged to have been under the seat, or inside a closed container or any compartment within the vehicle, such as the glove box, center console or trunk. It was, simply, on the floor of the car. The sole fact that the marihuana was inside the car itself does not render it hidden from public view

Courts have recognized that because transportation is the primary function of an automobile, there is a lesser expectation of privacy in an individual's car than his home (see Cardwell v Lewis, 417 US 583, 590 [1974]). "A car has little capacity for escaping public scrutiny. It travels public thoroughfares where its occupants and its contents are in plain view" (id.). Indeed, the passenger compartment of a standard automobile is "relatively open to plain view" (California v Carney, 471 US 386, 391 [1985]). Furthermore, "[a]utomobiles operate on public streets; they are serviced in public places; they stop frequently; they are usually parked in public places; their interiors are highly visible; and they are subject to extensive regulation and inspection" (Rakas v Illinois, 439 US 128, 154 n. 2 [1978]). In New York, the Court of Appeals has held that "[o]ne has no legitimate expectation of privacy in locations in a car which are observable by passersby" (People v Class, 63 NY2d 491, 494-495 [1984], revd on other grounds 475 US 106 [1986]). Thus, a location within a car which is observable to passersby cannot be considered private and, rather, by its nature is "open to public view." The passenger side floor of a car, which is ordinarily visible through a car's windows, is such a location. Moreover, an object which is exposed in a location within a car which is observable to passersby is likewise "open to public view." Hence, the marihuana exposed on the passenger side floor of the car in this case was "open to public view."

Accordingly, the factual allegations that the marihuana was recovered from the passenger side floor of the car at the intersection of Riverside Drive and West 165th Street provide reasonable cause to believe that the marihuana was possessed both in a public place (see People v Murray, 2006 NY Slip Op 50467U, 11 Misc 3d 134A [Sup Ct, App Term, 1st Dept 2006]) and while open to public view. Further, the reasonable inference to be drawn from the factual allegations that the marihuana was recovered [*4]"from the passenger side floor of the vehicle in which defendant was sitting and that recovery area was in close proximity to defendant" is that the defendant was sitting in the passenger seat and that the marihuana was at his feet. The presence of the marihuana within the defendant's reach at his feet provides reasonable cause to believe that the defendant exercised dominion and control over the marihuana and that therefore he constructively possessed it (see People v Tirado, 47 AD2d 193 [1st Dept 1975]).

Moreover, even if the defendant was seated elsewhere in the vehicle, the factual allegations nonetheless are sufficient to establish his dominion and control over the marihuana. Dominion and control over contraband located in an automobile may be demonstrated through a variety factors, in light of the "unique and mobile nature of automobiles, and their role in drug traffic" (People v Leyva, 38 NY2d 160 [1975]) (affirming conviction of defendants for drug possession when jury received instructions concerning automobile presumption). For example, dominion and control over contraband in an automobile has been shown via proof that a defendant claimed ownership of the vehicle in question (see People v Scrimenti, 137 AD2d 773 [2d Dept 1988]); but has also been shown by the fact that a defendant drove the car (see People v Downs, 195 AD2d 477 [2d Dept 1993]), controlled the itinerary, had access to the trunk and keys, and recently consumed the same type of drugs that were recovered (see People v Leader, 2006 NY Slip Op 1855, 27 AD3d 901 [3d Dept 2006]). Furthermore, constructive possession of contraband within an automobile has been shown where a defendant was in close proximity to a co-defendant who was trying to kick a bag containing large quantities of heroin and glassines under the front seat of the taxi cab in which they were passengers (People v Caba, 2005 NY Slip Op 8875 [1st Dept 2005]). As the court in the latter case noted, "the jury could have reasonably concluded that a person in possession of a large quantity of drugs would not permit another person to be in close proximity unless they were both part of the same criminal enterprise and were joint possessors" (id., at 292).

Finally, the vehicle in question is described as a "car" to which the court can only ascribe the plain, everyday meaning it conveys that of a privately owned and operated automobile, to which only acquaintances are usually admitted. Since it is reasonable to infer that the defendant was at least an acquaintance of the owner or operator of the vehicle, it is reasonable to further infer that the defendant also knew what was in the car with him. This is especially true in light of the fact that the three bags of marihuana were not secreted under a seat or in a compartment but were recovered from the floor of the car "in close proximity" to defendant.

Thus, while there may be some innocent explanation for defendant's presence in the car "in close proximity" to the three bags of marihuana that were recovered from the passenger side floor, that is an issue for trial. The People need not, for pleading purposes, disprove every conceivable defense (see People v Deegan, 69 NY2d 976, 979 [1987]). Because the instant complaint gives the defendant sufficient notice to prepare a defense, and is adequately detailed to prevent the defendant from being tried twice for the same offense (see Casey, 95 NY2d at 354), it is facially sufficient. While the People must still meet their burden of proof beyond a reasonable doubt at trial, their much lower burden at the pleading stage has been met.

REMAINING MOTIONS[*5]

Defendant's motions to suppress identification and physical evidence and statements is granted to the extent of ordering a Wade/Mapp/Dunaway hearing. Defendant's motion to preclude statements for which the People have not given proper notice is denied as premature since the People have not yet sought to introduce any such evidence. Defendant's request for a bill of particulars and demand for discovery is granted to the extent provided by the People in their Voluntary Disclosure Form. The People are directed to disclose the defendant's prior bad acts immediately prior to the commencement of jury selection in compliance with CPL 240.43 and the defendant's application for preclusion of same is reserved to the trial court.

This constitutes the decision and order of the Court.

Dated:November 13, 2008

New York, New York

_________________________

Elisa S. Koenderman, JCC Footnotes

Footnote 1:Defendant was arraigned in the instant matter on June 12, 2008 and the case was adjourned to August 4, 2008 for conversion. At that time, the first factual paragraph in the complaint alleged that an undercover police officer had informed the deponent officer that the undercover officer had observed the defendant "exchange US currency with an unapprehended seller for an object . . . believed to be marihuana." On August 4, 2008, the People moved to strike the first factual paragraph of the complaint and the complaint was deemed an information.