People v Bekhit
Annotate this CaseDecided on November 19, 2007
Criminal Court of the City of New York, New York County
People of the State of New York
against
Tsegai Bekhit, Defendant.
2007NY054312
For the People:
ADA Robert Kennedy
Office of the District Attorney, New York County
One Hogan Place
New York, NY 10013
For the Defendant:
Michael Alperstein, Esq.
30 Vesey Street, Suite 100
New York, NY 10007
Elisa S. Koenderman, J.
The defendant, Tsegai Bekhit, is charged with one count of Criminally Using Drug
Paraphernalia in the Second Degree, Penal Law 220.50 (1). The defendant has moved in an
omnibus motion for the following: (1) dismissal for facial insufficiency; and (2) a bill of
particulars and discovery. The motion is decided as follows.
FACIAL SUFFICIENCY
An information is facially sufficient if it meets three requirements. First, it 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]).
While the requirement of nonhearsay allegations (the "prima facie" requirement) has been described as a "much more demanding standard" than a showing of [*2]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), it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt at trial (People v Henderson, 92 NY2d 677, 680 [1999]; 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]). Additionally, 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, 390 [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 Shea, 68 Misc 2d 271, 272 [1971]; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]).
In the present case, defendant was allegedly an employee in a store located beneath an apartment, which are connected by a trap door. The store in which defendant was apprehended is located directly below the apartment, from which apartment police officers recovered a total of more than 90,000 individual items including glassine envelopes, plastic vials, caps for the vials, crack pipes, digital scales, "dime baggies" and bottles of lactose.
Defendant now moves for dismissal of the sole charge, arguing that the factual allegations in
the supporting deposition do not adequately demonstrate that the defendant knowingly and
unlawfully possessed the drug paraphernalia which were recovered from the apartment. He
asserts that the allegations do no more than show that he was merely present at the scene.
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: (1) Diluents, dilutants or adulterants, including but not limited to [ ] lactose [ ] under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use, the same for purposes of unlawfully mixing, compounding, or otherwise preparing any narcotic drug or stimulant" (PL 220.50[1]). As defined in section 10.00 of the Penal Law, "possess" includes both physical possession as well as the exercise of dominion and control over tangible property. In this case, defendant is not accused of physically possessing the lactose; rather, it is alleged that he had constructive possession.
Constructive possession requires more than mere presence in a location where contraband is recovered. "In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised dominion and control' over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized" (People v Manini, 79 NY2d 561, 573 [1992]). Dominion and control can be demonstrated in a variety of ways, including proximity of a defendant to contraband (People v Tirado, 47 AD2d 193 [1st Dept 1975]); defendant's authority over a person who possesses contraband as expressed via [*3]instructions (People v Diaz, 112 AD2d 311 [2d Dept 1985]) or via commands (People v Rivera, 77 AD2d 538 [1st Dept 1980]); or defendant's control over a premises (People v Tirado, supra).
Factors which demonstrate a defendant's control over a particular premises are defendant's provision of the premises' address as a home address to city agencies (People v Vasquez, 142 AD2d 698 [2d Dept 1988]); defendant's sole occupancy of a location where contraband is found in plain view (Matter of Dirhim A., 178 AD2d 339 [1st Dept 1991]); or defendant being the named tenant on a lease to premises where contraband is recovered (People v Torres, 68 NY2d 677 [1986]); or defendant's possession of a key to premises where contraband was recovered (see People v Torres, 68 NY2d 677 [1986]; People v Sandobar, 191 AD2d 375 [1st Dept 1993]; Matter of Dirhim A., 178 AD2d 339 [1st Dept 1991]; People v Armstrong, 160 AD2d 206 [1st Dept 1990]; People v Robertson, 61 AD2d 600 [1st Dept 1978]; People v Vasquez, 142 AD2d 698 [2d Dept 1988]).
None of these factors have been alleged in the present case; even with the benefit of every
reasonable inference, the People have not adequately alleged that the defendant was engaged in
behavior showing his dominion and control over the apartment above the store. The factual
allegations include defendant's statement that he is an employee in the store, which arguably
could give him dominion and control over the store (see People v Johnson, 209 AD2d
721 [2d Dept 1994]; see also, In the Matter of Dirhim A., 178 AD2d 339 [1st Dept
1991]); however, the factual allegations fail to demonstrate that there was contraband in the
store. The presence of a trap door connecting the store to an apartment where a substantial
quantity of drug paraphernalia was recovered, by itself, does not show defendant's dominion and
control over the apartment or its contents. At most, the nonhearsay allegations show that
defendant was merely present in the location directly below the apartment; clearly, such a
showing is insufficient. The factual allegation concerning the trap door does not cure this
deficiency, mainly because it is lacking in sufficient detail. The allegations are silent as to the
location and size of the trap door, its proximity to the defendant, whether or not it was clearly
visible, whether it could be opened from both ends or only one, and the like. While it might have
been possible that the trap door did provide meaningful access to the apartment and its contents
to persons within. the store below which access might arguably rise to the level of dominion and
control this possibility remains only a theoretical speculation with the present allegations. There
are no reasonable inferences that can be drawn to support the charge against the defendant.
Accordingly, the petition against the defendant is hereby dismissed as facially insufficient.
REMAINING MOTIONS
Defendant's request for a bill of particulars and demand for discovery are rendered moot.
This constitutes the decision and order of the Court.
Dated:November 19, 2007
New York, New York [*4]
_________________________
Elisa S. Koenderman, JCC
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