People v Cosmos (Charles)

[*1] People v Cosmos (Charles) 2015 NY Slip Op 51470(U) Decided on September 17, 2015 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 17, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ.
2013-1042 K CR

The People of the State of New York, Respondent,

against

Charles Cosmos, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael Yavinsky, J.), rendered April 3, 2013. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree.

ORDERED that the judgment of conviction is affirmed.

On March 27, 2013, the People charged defendant, in a misdemeanor complaint, with two counts of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and two counts of unlawful possession of marihuana (Penal Law § 221.05). On April 3, 2013, defendant waived his right to be prosecuted by information and pleaded guilty to one count of criminal possession of a controlled substance in the seventh degree in satisfaction of the accusatory instrument. On appeal, defendant argues that the accusatory instrument was jurisdictionally defective in that it failed to allege facts sufficient to establish that he had possessed crack cocaine.

As defendant waived prosecution by information, "the facial sufficiency of the accusatory instrument" is measured "by the standards required of misdemeanor complaints" (People v Dumay, 23 NY3d 518, 524 [2014]; People v Lurk, 41 Misc 3d 144[A], 2013 NY Slip Op 52061[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2013]). A misdemeanor complaint must contain "facts of an evidentiary nature" (CPL 100.15 [3]) sufficient to "establish reasonable cause to believe that the defendant committed the charged offense" (Dumay, 23 NY3d at 522; see CPL 100.40 [4] [b]) and "provide defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy" (Dumay, 23 NY3d at 524; see also People v Kass, 22 NY3d 1142, 1143 [2014]). "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]; e.g. People v Henry O., 47 Misc 3d 136[A], 2015 NY Slip Op 50502[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2015]; People v Rucano, 46 Misc 3d 142[A], 2015 NY Slip Op 50177[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2015]).

The factual allegations are, essentially, that a "plastic twist bag" of crack cocaine was discovered on a kitchen countertop, in plain view and "in close proximity" to where defendant and two others stood in the living room of an apartment. The instrument further alleged that plastic twist bags are, in the deponent's knowledge and experience, "commonly used method[s] [*2]of packaging" the substance. The People's theory of constructive possession, that is, that defendant "exercise[d] dominion or control" (Penal Law § 10.00 [b]) over the cocaine, requires more than proof of "mere presence in an apartment where drugs are found" (People v Banks, 14 AD3d 726, 727 [2005]; see also People v Headley, 74 NY2d 858, 859 [1989]; People v Edwards, 206 AD2d 597, 597-598 [1994]) with knowledge thereof (People v Burns, 17 AD3d 709, 711 [2005]). However, as a matter of "common sense and reasonable pleading" (People v Davis, 13 NY3d 17, 31 [2009]), the allegations in the accusatory instrument, which are "sufficiently evidentiary in character" and not conclusory (People v Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), along with the inferences reasonably to be drawn therefrom (People v Skyles, 266 AD2d 321, 322 [1999]), suffice to allege that defendant exercised "a sufficient level of control over the area in which the contraband [was] found" (People v Manini, 79 NY2d 561, 573 [1992]), that is, an " ability and intent' " to exercise dominion or control over the cocaine (People v Burns, 17 AD3d at 711, quoting People v Wesley, 73 NY2d 351, 361 [1989]). The cocaine was "readily accessible and available" to defendant (People v Hyde, 302 AD2d 101, 105 [2003]; see also People v Dinardo, 94 AD3d 626, 626 [2012]; People v Pierre, 36 Misc 3d 158[A], 2012 NY Slip Op 51808[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; People v Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U]). Defendant's intent to exercise dominion and control may be inferred from his conduct and the surrounding circumstances (People v Dumay, 23 NY3d at 525; People v Bracey, 41 NY2d 296, 301 [1977]; People v Reyes, 42 Misc 3d 127[A], 2013 NY Slip Op 52145[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2013]), which included the allegations that there were also three ziplock plastic bags of marihuana in plain view on a living room table near where defendant was standing, and that an additional bag was recovered from defendant's pants pocket. The "proof as to the [actual] nature of defendant's possession" was properly left for trial (People v Ortiz, 146 Misc 2d 594, 596 [App Term, 2d & 11th Jud Dists 1990]), the need for which was obviated here by defendant's guilty plea.

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur.

Decision Date: September 17, 2015