People v Velez

[*1] People v Velez 2016 NY Slip Op 51209(U) Decided on August 12, 2016 Criminal Court Of The City Of New York, New York County Cesare, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2016
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff,

against

Daniel Velez, Defendant.



2015CN008005



Appearances of counsel:

For the People: Shea Donato, ADA, NY County

For the defendant: Francis K. White, Esq., Legal Aid Society
Heidi C. Cesare, J.

Defendant, charged by information with one count of Criminal Possession of Marihuana in the Fifth Degree (Penal Law § 221.10 [1]) and one count of Unlawful Possession of Marihuana (Penal Law § 221.05) moves for an order dismissing the one count of Criminal Possession of Marihuana in the Fifth Degree pursuant to CPL 170.30, 170.35 and 100.40. For the reasons stated below, count one of the information, charging Criminal Possession of Marihuana in the Fifth Degree, is DISMISSED.[FN1]

A. The Allegations

The factual portion of the accusatory instrument sworn out by Police Officer Robert McNicholl of the NYPD Midtown North Precinct provides as follows:

"I observed the defendant holding a marijuana cigarette in a public place and open to public view. I then took the marijuana, one cigarette containing marijuana, from the ground where I observed the defendant discard it.I took marijuana, two bags containing marijuana not burning or open to public view, from the defendant's pocket. I observed Police Officer Christopher O'Connor, Shield No. [] of the Midtown North Precinct also take five bags containing marijuana from a container in the defendant's bag.I believe the substance is marijuana based upon my professional training as a police officer making marijuana arrests, the odor emanating from the substance, an observation of the packaging, which is characteristic of marijuana, and a field test that confirmed that the substance is marijuana."

The accusatory portion of the information alleges that this occurred at about 9:38 p.m. at West 44th Street and 10th Avenue in the County and State of New York.

B. Facial Sufficiency

To be facially sufficient, an information must contain non-hearsay factual allegations providing reasonable cause to believe that the People can prove every element of the crime charged (CPL 100.40 [1] [b], [c]; People v Alejandro, 70 NY2d 133 [1988]). 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]). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v Jackson, 18 NY3d 738, 741 [2012]; see CPL 100.40 [1] [c]). Further, "[s]o long as the factual allegations of an information give an accused notice sufficient 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]).

C. Criminal Possession of Marihuana in the Fifth Degree

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." (Penal Law § 221.10 [1]). "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." (Penal Law § 240.00 [1]). A complaint that lacks factual allegations describing the "public place" of the offense and merely relies on otherwise "conclusory statements that do no more than track the language of Penal Law § 221.10(1) . . . fails to meet the reasonable cause requirement and should be dismissed" (People v Afilal, 26 NY3d 1050 [2015]).

In the present case the only factual allegation relating to place, other than the language tracking the statute, is that the officer retrieved defendant's marihuana cigarette "from the ground" at West 44th Street and 10th Avenue. The People argue that the allegation that the marihuana was recovered "from the ground" permits the court to reasonably infer that the defendant was in a public place since "the ground" connotes being out in the open. The court disagrees. The word "ground" indicates the surface of the earth; a place a person might tread or stand. Grounds, however, may be public or private, and nothing in the instant complaint permits the court to reasonably [*2]infer one or the other. As the public place element is insufficiently plead, the People have failed to establish reasonable cause to believe every element of the offense charged. Defendant's motion to dismiss count one charging Criminal Possession of Marihuana in the Fifth Degree (Penal Law § 221.10 [1]) is granted.

D. Conclusion

Defendant's motion to dismiss count one charging Criminal Possession of Marihuana in the Fifth Degree (Penal Law § 221.10 [1]) is granted.

Defendant's motion for a Mapp/Dunaway pretrial hearing is granted.

Defendant's motion to preclude evidence of unnoticed statement or identification testimony is granted pursuant to CPL 710.30(3).

Defendant's motion for a Sandoval hearing is reserved to the trial part.

Defendant's motion for a Bill of Particulars is denied.

Defendant's motion for an extension of time to file additional motions is denied, subject to the provisions of CPL 255.20 (3).

This constitutes the decision and order of the court.

August 12, 2016

New York, New York

Heidi C. Cesare, J.C.C. Footnotes

Footnote 1:In evaluating defendant's motion, the court has considered all submissions by the parties, all documents in the court file, and all relevant cases and statutes.