People v Wright
Annotate this CaseDecided on April 4, 2008
Suffolk Dist Ct
The People of the State of New York,
against
Wilbur Wright, Jr., Defendant.
2006SU31508
THOMAS J. SPOTA, III, ESQ.
SUFFOLK COUNTY DISTRICT ATTY.
For the People
400 Carleton Avenue
Central Islip, NY 11722
By: Micheal Manning
ADAM S. HALPERN
256C Orinoco Drive, P.O. Box 322
Brightwaters, NY 11718
Salvatore A. Alamia, J.
ORDERED that this motion by the defendant for an order pursuant to CPL 170.30(1)(a) and 170.35(1)(a) dismissing the informations filed under the above docket numbers for facial insufficiency is granted.
The statutory requirements for the factual part of an information are that it state facts of an evidentiary character supporting or tending to support the charge (CPL 100.15[3], 100.40[1][a]), that the allegations of the factual part and any supporting depositions provide reasonable cause to believe that the defendant committed the offense charged (CPL 100.40[1][b]), and that the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof (CPL 100.40[1][c], 100.15[3]). People v. Casey, 95 NY2d 354, 360 (2000). While the factual allegations of an information should be given a "fair and not overly restrictive or technical reading" (People v. Casey, supra, 95 NY2d at 360), the non-hearsay allegations must be sufficient to establish a prima facie case, which is not as high as the burden of proof beyond a reasonable doubt required at trial. See, People v. Henderson, 92 NY2d 677 (1999); People v. Alejandro, 70 NY2d 133, 138 (1987).
Each information charges the defendant with one count of Criminal Possession of Marijuana in the Fifth Degree, in violation of Penal Law 221.10(1), based on the personal knowledge of the same complainant officer. Taken in chronological order of commission, the information filed under docket number 2006SU31509 alleges that at about 6:45 p.m. on June 11, 2006, at Lakeland [*2]Avenue and Route 27A in Patchogue, the defendant "did have cigarette stubs containing leafy green material located inside the vehicle in plain view of [sic] 1999 Jeep Grand Cherokee, NY Reg DPL221. This information is based in part on the substances [sic] odor, color and texture which led your deponent a police officer with 2.5 months experience as the arresting or investigating officer, to determine that the substance was in fact marijuana." The information filed under docket number 2006SU31508 alleges that at about 7:40 p.m. on the same date, also at Lakeland Avenue and Route 27A in Patchogue, the defendant "did have a cellophane bag containing a leafy green material on his person and tried to hide it in the seat of the police car while being transported to the 5th Precinct for another criminal possession of marijuana charge. This information is based in part on the substances [sic] odor, color and texture which led your deponent, a police officer with 2.5 months experience as the arresting or investigating officer to determine that the substance was in fact marijuana." A laboratory report has been filed with this information confirming the substance to be marijuana.
A person is guilty of Criminal Possession of Marijuana in the Fifth Degree when he knowingly and unlawfully possesses marijuana in a public place, as defined in Penal Law 240.00, and such marijuana is burning or open to public view. Penal Law 240.00 defines "public place" 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." See, Penal Law 221.10(1); Penal Law 240.00(1). For purposes of determining the facial sufficiency of an accusatory instrument, the interior of a parked car may be considered a "public place" under circumstances where "the car's interior is visible to a member of the passing public, and the vehicle is situated in a place where it would likely be observed by such a person." People v. McNamara, 78 NY2d 626 (1991).
The non-hearsay factual allegations of the information charging the first offense are sufficient to establish that the interior of the Jeep Grand Cherokee was a public place, as defined in the Penal Law, based on a fair reading of the complainant officer's allegations that the defendant had the cigarette stubs located inside the vehicle in plain view at the specified location. See, e.g., People v. Murray, 2006 NY Slip Op 50467U, 11 Misc 3d 134A (App. Term, 1st Dept. 2006), lv. den. 7 NY3d 760 (2006). The officer's allegation that the cigarettes [*3]contained marijuana is conclusory, however, as it is not supported by positive field test results or a laboratory report establishing that the substance was, in fact, marijuana. The information thus fails to set forth a prima facie case and is dismissed. See, People v. Van Hoesen, 12 AD3d 5 (3rd Dept. 2004), lv. den. 4 NY3d 804 (2005); CPL 100.40(1), 100.15(3).
The information charging the second offense, unlike the first, contains a laboratory report
identifying the substance at issue as marijuana. However, the non-hearsay allegations do not
establish that the interior of the police car was a public place within the purview of Penal Law
221.10(1) and 240.00(1). The complainant officer alleges that the offense occurred inside the
police car while the defendant was being transported to the Fifth Precinct. Although the roadway
on which the defendant was transported is itself a "public place" as defined by the Penal Law,
there are no factual allegations that the police car was parked, stopped, or otherwise situated in
such a manner that would render its interior visible to a member of the passing public, in the
absence of which the information does not establish that the interior of the police car was a
public place and that the marijuana was open to public view. See, People v.
McNamara, supra; see also, People v. Finch, 2008 NY Slip Op 28124
(District Ct., Nassau Co. 2008), Penal Law 221.10(1). Thus, the information is facially
insufficient and is similarly dismissed.
Dated:
J.D.C.
Decision to be published on line: X yesno
THOMAS J. SPOTA, III, ESQ.
SUFFOLK COUNTY DISTRICT ATTY.
For the People
400 Carleton Avenue
Central Islip, NY 11722
By: Micheal Manning
ADAM S. HALPERN
256C Orinoco Drive, P.O. Box 322
Brightwaters, NY 11718
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